The Democrats are trying to make the confirmation of Neil Gorsuch into some kind of “out of the ordinary, radical” departure from business as usual. What is of great interest here is that the Democrats themselves blew up the 60 vote rule and are now complaining that their rule may be used against their interests.
The rule in question is the Senate’s “60 votes to pass” rule that was adopted in 1975. Harry Reid, Leader of a Democrat majority that he thought was permanent, confronted by Republican opposition to his Obama’s radical leftist nominees to the DC Court of Appeals, the nation’s second-highest court. invoked what he called the “Nuclear option” which was a rule that allowed the 60 vote rule to be changed by a majority vote. That means that majority rule is the rule. Period. harry Reid is to be saluted.
This article goes into the issue more deeply.
TheyWere Against It, Before They Were For It
Speaking out of both sides of one’s mouth is an occupational hazard, if not an occupational necessity, for politicians seeking elective office in competitive races. It’s not a pretty sight, and it supports a cynicism about democratic politics that is unbecoming. Catering to such cynicism, the leftist writer Garry Wills used to advise college audiences, “Vote for your enemy–he has no one to sell out to but you.”
The political debate over the use of the Senate’s filibuster rule to torpedo President Bush’s judicial nominees has triggered a series of reversals and pratfalls that support the low-comedy version of democratic politics. Among the most notable examples was the April 3 profile of former Ku Klux Klan kleagle and civil rights obstructionist Robert Byrd as a cornpone constitutionalist by New York Times congressional reporter Sheryl Gay Stolberg: “Master of Senate’s Ways Still Parries in His Twilight.” Twilight zone would be more like it, but we get the point.
In my home state of Minnesota the pratfalls have reached a kind of perfection in the naked reversals of the laughingstock-liberal Minneapolis Star Tribune and respected liberal former Minnesota Senator Walter Mondale. During the Clinton administration, no newspaper in the country converted Democratic party talking points into editorials more quickly than the Star Tribune. The tradition continues today. In an April 24 editorial, the Star Tribune lauded the filibuster and condemned Republican efforts to end it in connection with judicial nominations.
When portions of President Clinton’s legislative program were threatened by the filibuster in 1993, however, the story was different. The Star Tribune‘s editorial page raged: “Down the drain goes President Clinton’s economic stimulus package, washed away in the putrid flood of verbiage known as a filibuster. Call it a power game. Call it politics as usual. Call it reprehensible.” (Call it an occasion for the enforcers on the Star Tribune‘s editorial board to opine in their characteristic bullying style.)
Well, that was different, of course. It was different, too, in 1994, when the Star Tribune published an editorial titled “Stall busters–Don’t pull punches in anti-filibuster fight.” This time, the Star Tribune hailed the efforts of a bipartisan group that sought to end the filibuster once and for all:
More than a score of distinguished Minnesotans are lending their names today to a national crusade against a worsening threat to American democracy. The threat doesn’t spring from economic ills, social decay or foreign menace. It’s something that’s long been in the U.S. Senate’s rule book–the ability of a 41-percent minority to block action with a filibuster . . . [W]hen such a group comes together with like-minded leaders from around the country, they should not be content merely to sound an alarm and seek some pledges. They should crusade for changes in Senate procedures that would prevent an obstructionist minority from delaying action indefinitely.
When we noted the Star Tribune‘s “that was then, this is now” approach to editorial judgment on Power Line, Jim Boyd–the deputy editor of the Star Tribune editorial page–irately denied any contradiction. Two days later, however, he wrote us: “I think you actually have caught us in a contradiction. We can change our mind . . . but in this case, we really didn’t. We simply missed the precedent and, like a court, if we make such a shift, we owe readers an explanation for why we did it.”
We’re still waiting; the Star Tribune has yet to publish the explanation it acknowledges its readers are owed. But it has published another column condemning Republican efforts to roll back the filibuster in connection with judicial nominations. Last week the Star Tribune scraped bottom in a purported bipartisan column under the joint byline of Republican former Senator David Durenberger and Democratic party elder statesman Walter Mondale: “Preserve Senate rules, filibuster and all.” (For present purposes, I’ll ignore Durenberger except to say that when last seen in the Star Tribune, he endorsed John Kerry for president; that’s bipartisanship a la the Star Tribune.)
Last week’s column traces the venerable filibuster to “the days when Thomas Jefferson first wrote the Senate’s rules,” and argues: “Today, as it has been for 200 years, an individual senator may talk without limit on an issue; and others may join in, and they may continue to press those issues until or unless the Senate by 60 votes ends that debate and a vote occurs. No other legislative body has such a rule.”
The imputation of an ancient lineage to a 60-vote filibuster rule is of course flatly mistaken. The 60-vote rule derives not from the days when “Thomas Jefferson first wrote the Senate’s rules,” but rather from 1975. Surely Mondale remembers; as a Minnesota Senator, he led the successful fight to reform the filibuster by reducing the number of votes necessary for cloture from 67 to 60. Mondale was, in fact, the leading Democratic opponent of the filibuster. On January 17, 1975, he stated on the floor of the Senate: “It seems to me that a not-so-subtle difference, a profound difference, between 66 2/3 percent and a simple majority could be the difference between an active, responsible U.S. Senate and one which is dominated by a small minority.” Mondale accordingly advocated the right of a Senate majority to change the filibuster rule: “May a majority of the members of the Senate of the 94th Congress change the rules of the Senate, uninhibited by the past rules of the Senate? I firmly believe that the majority has such a right–as the U.S. Constitution, the precedents of this body, the inherent nature of our constitutional system, and the rulings of two previous vice presidents make clear.”
In last week’s Star Tribune column, Mondale acknowledged neither his past positions, nor his own historic role in reforming the filibuster in 1975. Like a good postmodern Democrat, Mondale simply put his past under erasure. Interested readers can turn for further details to the law review article on the constitutional option by Martin Gold and Dimple Gupta. The Gold-Gupta article covers the Senate’s 1975 proceedings as but one chapter of an important story.
After adoption of the revised filibuster rule in 1975, Mondale took a look back in a March 18 column (“The filibuster fight”) for the Washington Post. That column deserves the attention of serious observers of the current filibuster debate. Mondale proudly wrote: “The modification of Rule XXII [the filibuster rule] may prove to be one of the most significant institutional changes in the 196 years of the Senate.” Mondale added: “[T]he Rule XXII experience was significant because for the first time in history a Vice President and a clear majority of the Senate established that the Senate may, at the beginning of a new Congress and unencumbered by the rules of previous Senates, adopt its own rules by majority vote as a constitutional right.”
It’s a shame Mondale has chosen to ignore his own words; some might consider them inspirational.
Scott Johnson is a contributor to the blog Power Line and a contributing writer to The Daily Standard.