Freedom Line Blog

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

After weeks of failing to pass a bill blocking implementation of President Barack Obama’s unilateral amnesty for millions of illegal immigrants, Republican leaders in Congress called it quits.

A so-called “clean” bill – one without the amnesty prohibition – passed the House of Representatives 257 – 167 yesterday, with all of the no votes coming from Republicans. The bill is expected to pass the Republican-controlled Senate quickly.

Though much of the blame is being focused on House Speaker John Boehner (R-OH), it seems the media is conveniently forgetting that new Senate Majority Leader Mitch McConnell (R-KY) let a presidential attack on constitutional separation-of-powers supersede a Senate debating procedure known as the filibuster. If the roles were reversed it is inconceivable that Harry Reid would let a procedural rule he controls thwart his sense of constitutional propriety.

By elevating a Senate tradition above Congress’ constitutional duty to make the laws, McConnell has effectively neutered his 54 member majority since it lacks the 60 votes it needs to actually govern.

Welcome to the Republican Senate. Its work product looks an awful lot like its Democratic predecessor.

In an interview with CFIF, Carrie Severino, Chief Counsel and Policy Director of the Judicial Crisis Network, discusses the Senate filibuster rules change and judicial nominations to the U.S. Court of Appeals for the D.C. Circuit.

Listen to the interview here.

Quin has a must-read idea about how to turn Senate Majority Leader Harry Reid’s (D-NV) filibuster nonsense into a political winner for the Republican Party.

Sketched out as only a savvy former congressional staff member could do, Quin’s idea calls on Senate Minority Leader Mitch McConnell (R-KY) and House Speaker John Boehner (R-OH) to hold a joint press conference to announce:

1)    The role the filibuster has played in Senate deliberations
2)    How Republicans on both sides of the capitol could respond with tactics that would grind legislative business to a halt
3)    Or instead, with a compromise endorsed by 19 current and former Senate Democrats that preserves the filibuster, but in a form more in service to the public good

The proposed change would “turn the group filibuster back into a tool for extended debate – to try to rally public support – rather than a means of permanent obstruction,” writes Quin at NRO. “By serially ratcheting down the number of votes needed to invoke cloture – from 60 to 57 – 54 to 51, on successive attempts – the rule in effect would force opponents of a bill or nomination to show that their arguments are gaining more adherents as time progresses, thus showing that they might actually gain the support of an awakening public.”

For me, the attractiveness of Quin’s idea is its attempt to re-inject much-needed attention on the deliberative process in lawmaking. For the first time in years, the Senate – and especially the Republican bench – boasts a bevy of thoughtful debaters like Ted Cruz (R-TX), Mike Lee (R-UT) and Rand Paul (R-KY). Rather than speechmaking marathons where one person must speak until exhausted, America would be better served hearing, for example, Cruz and Tim Kaine (D-VA) debate immigration policy.

The possibilities abound. Imagine a debate between Paul and Chuck Schumer (D-NY) on fiscal and monetary policy. Or between Lee and a Democrat-to-be-determined on any clause in the Constitution. By making the filibuster vote threshold drop with every round of voting, opponents of a measure must either win converts or lose the majority. Either way, the legislative process is made better because the senators elected to represent the public are putting their reasons on the record.

My quick summary doesn’t do enough justice to Quin’s piece, which you can read here. At a time when so much of government seems broken, it is refreshing to read a piece that offers a workable solution.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

It looks like Quin’s prediction that Senate Republicans would filibuster Chuck Hagel’s nomination to be the next Defense Secretary was right on.

Politico and Fox News are reporting that Senate Majority Leader Harry Reid doesn’t have 60 votes necessary to shut down a threatened Republican filibuster, so it looks like Hagel will be in confirmation limbo until at least February 25^th.

The reasons given revolve mainly around trying to pressure the White House to turn over documents detailing the Obama Administration’s response during and after the terrorist attack on the American Consulate in Benghazi, Libya.  So far, there have been only cursory remarks by Republican Senators that a vote on Hagel is being delayed because of problems raised by his past policy statements and inconsistent testimony two weeks ago.

Right now, it looks like the GOP, as the minority party in the Senate, is trying to assert itself any way it can.  But there is a risk the move could backfire, if over the next week or two President Obama successfully frames the filibuster as over a dispute about an issue unrelated to Hagel’s fitness to run the Pentagon.  To avoid that, Republicans should be prepared to make a compelling case against Hagel on the merits, in every forum possible.

The Hill is reporting that Senate Majority Leader Harry Reid (D-NV) is in the final stages of hammering out a filibuster reform package.  Here are the two biggest changes:

The agreement between Reid and McConnell is not expected to include the talking filibuster, which would require senators who want to block action on legislation to actually hold the floor and debate for hours on end.

In recent days, Reid has begun to focus on a proposal to tweak the filibuster rule by requiring the minority party to muster 41 votes to stall a bill or nominee. Under current rules, the responsibility is on the majority to round up 60 votes to end a filibuster.

I say half right because I favor a talking filibuster and making the minority party (in this case the Republicans) come up with the votes necessary to trigger a filibuster.  Putting people on the record isn’t comfortable, but it is required to make the distinctions between the parties – and their ideologies – more publicly apparent.

Moreover, citizens need to know the well-reasoned, well-researched arguments for and against a proposed policy.  Far from hurting the Republican minority, I think giving articulate conservatives like Ted Cruz (R-TX), Marco Rubio (R-FL), Mike Lee (R-UT), and Rand Paul (R-KY) an opportunity to make their case will help educate the public about important issues.  This in turn will spur a dialogue on the Right that will allow the movement to better understand itself so that it can better persuade the electorate.

Ashton, just to be clear (in response to your post), I do understand the procedures. Here’s the thing: There is plenty of time to gauge, from press statements and elsewhere, a rather good sense of how many senators support a nomination, and therefore whether or not it will be killed in an up or down vote. My contention is that a senator seeing the tea leaves going in favor of Hagel could consider a hold before the nomination technically reaches the floor. I do not necessarily advocate this, but I think it’s worth looking into.

Sure, a majority leader can disregard a hold, technically. But if he does so, members of one’s own party, looking to protect their own prerogatives, are then MORE likely to join the “holder” in a subsequent filibuster.

But the main thing I advocate is not a hold, but the willingness to filibuster this thing to death. Of course I know that Reid is threatening to kill the filibuster, but there is blowback on his side, too. The rules will be determined in just a few weeks; from what I have read, the most likely outcome is that he will kill the ability to filibuster the motion to proceed to debate in the first place, but will probably not change the rules to disallow a filibuster on the motion to “call the question” — in other words, to end debate and hold a straight up-or-down vote.

Because this motion comes already after at least some debate has been held, it is perfectly consistent with my agreement with Ashton’s advocacy of using open debate to try to kill the nomination. Indeed, I think enough Democrats are skittish about Hagel that the nomination can indeed by killed in a straight up or down vote — and that there will be enough clear statements of Democratic opposition that it will be safe to allow it to go to such a vote.

BUT… BUT… BUT! — if it looks like Obama has strong-armed enough Dems that Hagel will get through, or has a good chance of doing so, THEN I think a filibuster is in order to keep debate going (technically speaking) and, in short, to forever block the nomination. By that time, the rules will be set already. Reid of course could then still use the nuclear option, but it would be mighty risky of him to do that after having already agreed to rules for this Congress that do allow a filibuster before proceeding to a final vote.

So I am not “wrong” about procedures. You may disagree with my advocacy of certain procedures, but that’s different from not understanding them fully.

And, for the record, I am not a huge fan of killing ANYTHING with a permanent filibuster. I am an advocate of a different kind of filibuster reform, which I have written about elsewhere. But the rules and their use should be consistent from party to party. Unless a fair-minded, apolitical reform is introduced, and absent serious constitutional (letter OR spirit) concerns that apply in the case of judicial nominees but not executive branch nominees, I think that a precedent as recent as the filibuster against John Bolton is one that should apply the first time the shoe is on the other party’s foot, so to speak, in terms of a major executive branch nomination.

This is especially true when the concerns go, as they do with Hagel, not just to mere political differences, but to major policy misjudgments, major evidence of unseemly bias, and character concerns.

Just as no anti-black racist should ever be confirmed for a high post, so to should no anti-Semite be so confirmed. This is basic stuff, getting to the very heart of moral fitness for office. I think there is solid evidence that Hagel has anti-Semitic (not just anti-Israel’s foreign policy) tendencies, and that he is also dangerously unwilling to even acknowledge obvious proof of terrorism if the terrorism in question is mostly aimed at Israel. He cannot, must not, ever, be confirmed.

In light of the volleys exchanged, let’s review how a senatorial hold works.

From the U.S. Senate’s reference page on chamber rules:

hold – An informal practice by which a senator informs his or her floor leader that he or she does not wish a particular bill or other measure to reach the floor for consideration. The majority leader need not follow the senator’s wishes, but is on notice that the opposing senator may filibuster any motion to proceed to consider the measure.

Note the part stating, “The majority leader need not follow the senator’s wishes, but is on notice that the opposing senator may filibuster any motion to proceed to consider the measure.”

What’s a filibuster?

filibuster – Informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.

Bear in mind that the majority leader, i.e. Harry Reid (D-NV), “need not follow the senator’s wishes…”  Recall also Reid’s musings that he’d like to enact the so-called ‘nuclear option’ to remove the usual supermajority requirement for overcoming a filibuster, and replace it with a simple majority.  So, if the Senate Democratic caucus wants to, they can 1) refuse to honor any hold requests on Hagel, and 2) change Senate rules on filibusters to shut down the opposition.  With several news outlets reporting that President Barack Obama is ready to pick a fight over Hagel, I think Reid does both if Republicans try to kill Obama’s nominee for Defense Secretary with obstructionist procedural tactics.

Maybe if Hagel was nominated for some second tier Cabinet office Republicans could get away with relying on informal procedures to block his next career move.  But with Obama riding high after the fiscal cliff negotiations – Quin’s optimism notwithstanding – I think Republicans will lose, and lose big, with the public if they try to kill Obama’s top Pentagon pick on procedure rather than substance.

It should be said that I don’t disagree with any of Quin’s criticisms of Hagel.  Instead, my point of departure is with Quin’s reliance on procedural obstruction rather than tough questioning and reasoned argument.  Conservatives have one of the most intellectually articulate groups of senators in living memory with the likes of Marco Rubio, Ted Cruz, Mike Lee, Rand Paul, and others.  Let them and military stalwarts like John McCain and Lindsey Graham make a coordinated, sustained case against Hagel and his views on foreign policy.  In the process, they might even discover a countervailing vision that convinces the American people.

I respectfully but strongly disagree with Ashton’s post against the idea of a Republican filibuster of the Hagel nomination, or a hold on the same.

To be more specific, I do agree, wholeheartedly, with this:

In the confirmation hearings, during floor debate, and in an actual speaking filibuster if it comes to that, Senate Republicans will have many instances to make precisely the case Quin alludes to, and any other substantive policy criticisms about Hagel they think will defeat his confirmation.  But let’s have the argument in public, through the normal process of a presidential nomination.

U.S. Senators like to think they work within “the world’s greatest deliberative body.”  Let them prove it with a robust examination of Chuck Hagel’s fitness to be the next Secretary of Defense.

I do believe that such scrutiny is a good thing. I do believe they should use it to put the pressure on Democrats to oppose the nomination. But I disagree with Ashton’s implication that, in the end, a straight up or down vote should be Hagel’s right.

In this extreme case, a case of a man so fundamentally at odds with so many basic precepts of decent foreign policy (he does not worry about Iran getting nukes, he would not label Hezbollah a terrorist organization, he would not advocate getting tough with North Korea, he repeatedly made references to the “Jewish lobby” and similar remarks, he said “let the Jews pay for” the single most popular USO post for American servicement, to the detriment of our own troops, and he was the only one of 100 senators to refuse to condemn Russian anti-Semitism, among numerous other foreign policy sins), there is more at stake than the public record. Such a man has no business, none whatsoever, coming anywhere within Jew-baiting distance of the Pentagon’s top office. He would be a menace as Secretary of Defense.

If not enough Democrats will join Republicans in killing this dastardly nomination, then Republicans ought to filibuster the nomination to death. And if they won’t do that, then a single Republican should use every other power at his disposal to block it.

I oppose the use of a filibuster to permanently kill a judicial nomination, for numerous reasons I have explained elsewhere. I think it violates the spirit and perhaps letter (the latter is arguable) of the Constitution to hold a third branch of government hostage to a super-majority vote. But that is decidedly not the case with an executive-branch appointee. Congress is empowered to keep direct watch over executive overreach. It should do so.

Democrats in the Senate filibustered to death the nomination of John Bolton to be Ambassador to the United Nations. Republicans and reasonable Democrats ought to do the same to Hagel, if they cannot defeat him in an up-or-down vote.

This is a hill to die on.

The Hill is reporting that Senate Majority Leader Harry Reid (D-NV) has the 51 votes needed to change the upper chamber’s filibuster rules.  Historically, rules changes to Senate procedure are done with two-thirds support (currently 67 votes) in order to ensure bipartisanship.  Making the change with only 51 Senators would mean only the majority of Democrats favor the move.

An ad hoc group of Senators from both parties is trying to broker a compromise reform that would speed certain processes along – such as some judicial nominations and the amending of bills – but so far their version of reform doesn’t include the most obvious change: Actually requiring an objecting Senator to verbally filibuster.

Call me simplistic, but I think presidential nominations should get an up-or-down vote, and filibusters should be real.  There’s too much posturing in politics.  I’d much rather see politicians put their reasons on the record than suffer through another year of finger-pointing.

To follow up on yesterday’s post, it now appears there is at least a reasonable chance that Republicans actually will muster the strength to block horrendous judicial nominee Goodwin Liu. Senate Minority Leader Mitch McConnell has been leading the charge, and he expressed optimism this morning. Here’s what Leader McConnell said to Jed Babbin a few mins ago on Laura Ingraham’s show: “This is a very bad nominee… I’m optimistic that we will be able to defeat the nomination.” In this morning’s Washington Post, “[ranking Judiciary Committe Republican Chuck] Grassley predicted that he had the votes lined up to block Liu from being confirmed.” Obviously it’s a bad idea to count chickens before they’ve hatched, but as McConnell said, there are reasons for optimism.

Meanwhile, even South Carolina’s Sen. Lindsey Graham, who has been annoyingly over-solicitous of Democrats for many years of judicial battles, sent a “Dear Republican Colleague” letter to all his fellow Senate Republicans. I’ll quote extensively from it:

“Only in the most extraordinary of circumstances, such as when a judicial nominee is ethically compromised or displays a fundamental disregard for the constitutional role of a judge, should the Senate prohibit them from office. Unfortunately, Goodwin Liu falls short of the minimum threshold for confirmation to the federal bench. I write today to urge a ‘no’ vote on the motion to invoke cloture on the nomination of Professor Goodwin Liu to the Ninth Circuit Court of Appeals…. The reasons for voting against cloture on Professor Liu’s nomination are undoubtedly ‘special and strong.’ Through his writings, Professor Liu has expressed preference for an extreme judicial philosophy that relies on a judge’s personal and subjective beliefs, not precedent and case law…. Unlike other nominees who have compiled lengthy records in the judiciary or government service, Professor Liu has spent the vast majority of his career in academia. That’s not disqualifying, of course, but his lack of broader experience fails to demonstrate an ability to uphold and respect the law in the face of personal disagreement.”

Graham then went on to provide a sample of Liu’s outrageous comments, and also blasted Liu for engaging in a “vicious personal attack on Justice Alito at the Judiciary Committee hearing considering his nomination to the Supreme Court.” Finally, Graham concluded: “Professor Liu has advocated for a staggeringly subjective and malleable judicial philosophy. Rather than deciding cases on the basis of law established by the political branches and past precedent, Professor Liu’s philosophy substitutes the role of the Judiciary for that of the Legislative and Executive branches of government. To Professor Liu, a federal judge may be less an impartial arbiter of justice than an advocate engaging in policymaking from the bench.”

Wow. That’s strong stuff. Coming from Graham, it may well convince wavering Republicans to stand strong against the nomination.

Curt Levey at the Committee for Justice has the story. Judicial nominee Goodwin Liu, radical and dishonest,  is due for a Senate vote tomorrow. Levey suggests that a filibuster might be in order.

I write here neither to advocate for, nor argue against, a permanent filibuster to kill this nomination. Others can decide whether Liu’s profound drawbacks amount to an “extraordinary circumstance” that allows a permanent filibuster under the terms of that sop to squishes, the Gang of Fourteen. Instead, I write merely to remind people that there is another option that isn’t all-or-nothing. I wrote about it back when Elena Kagan was being considered for the Supreme Court. The other possibility is that of a temporary, time-limited filibuster (or series of cloture votes — perhaps two or three) designed to draw public attention to the matter and actually encourage lengthy debate in that light.

What I wrote in terms of a Supreme Court nomination was this:

After demanding a full, fair hearing, they should in turn allow a full, fair vote. But the latter should depend upon the former, the public hearing and response before the full and oh-so-final vote…. Republicans showed in 2002 and 2004 that when judges become campaign issues, Republicans win. Despite GOP hand-wringing, evidence to the contrary is utterly nonexistent. Polls show that the public supports originalist approaches to judging rather than the “evolving Constitution” model. Polls show that the public, by outright majorities or solid pluralities, also approves of the usual policy results that happen to emerge from originalist procedures: against partial birth abortion, against government seizure of private property for other private use, against judicially imposed homosexual marriage, against handgun bans, against outright bans on all religious references in the public square, against race-based admissions and job promotions, against an ever-expansive federal government at the expense of the states, against bureaucratic overreach, and especially against coddling of criminals because of purely innocent procedural errors by police. These are issues Americans care about, and they are issues conservatives will always win on.

Judicial nominations are important.  One way or another, they merit significant public attention.

Upon officially entering the Republican primary to face Senator Chris Dodd (D-CT) in next year’s U.S. Senate race, Peter Schiff vowed to “filibuster until I die” if that’s what it takes to convince members of Congress how horrible are their economic policies. However, if Senator Tom Harkin (D-IA) gets his way, theoretically Schiff could find himself in a silenced minority of 49 out of 100.

As trial balloons go, Harkin’s idea to eliminate the filibuster is getting more discussion than most. First there was an interview and weekend op-ed via Ezra Klein in The Washington Post. Today, Jay Cost at RealClearPolitics provides a detailed critique (including a graph!) defending the moderating device. While Klein bemoans the “paralysis” caused when the majority party refuses to negotiate, Cost correctly points out the Framers didn’t intend to make governing easy, only possible.

Beyond original intent, though, Klein would do well to remember that not everybody saw light at the dawn of the Age of Obama. In fact, people like Schiff are so angry at the leftward lurch of the federal government that they are willing to stand up in a town hall meeting or the well of the United States Senate and tell their peers why it’s wrong.

Truth be told, the funny thing about filibusters is that they are so rarely forced. In reality, it’s not the use of filibusters that upsets Klein and Harkin, it’s the threat of using them. Announce you’ll filibuster and the governing elites seethe, condemn, and then capitulate. Had then-Senate Majority Leader Bill Frist (R-TN) called the Democrats’ bluff to filibuster George W. Bush’s judicial nominees there is little doubt a true round-the-clock filibuster would have run its course within a week; all the while Democratic surrogates would be getting killed on television trying to explain why imminently qualified attorneys shouldn’t be allowed the courtesy of an up-or-down vote.

At bottom, what Klein and Harkin hate isn’t filibusters – it’s any indication that a Democratic majority in Congress doesn’t necessarily reflect America’s majority opinion. With the Tea Party movement gaining steam with the likes of Peter Schiff and Rand Paul, one hopes the filibuster can survive until they arrive in the U.S. Senate. If they bring a majority, maybe Klein and Harkin will rethink their support of the filibuster.

Taxpayers are doing their part to defeat government-run health care by marching, calling Congress and urging others to get involved.

Senator Judd Gregg, someone with direct power to defeat ObamaCare, now has a legislative blueprint for stopping the Senate’s version of health care “reform.”

Among the highlights:

• “Hard” Quorum Calls – requires at least 51 Senators to be present in the Senate chamber for any substantive debate on health care.

• Reading of Amendments and Conference Reports in Entirety – with 2,000 pages to read, it would take days.

• Senate Points of Order – delays legislative business because the Senate is required to take two roll call votes to dispense with a point of order.

• Filibuster by Amendment – until Harry Reid invokes cloture, Senators may offer an unlimited number of amendments.

• Motion to Instruct Conferees – Senators may offer an unlimited number of motions to instruct the Senate’s conferees.

You can do your part to defeat government-run health care by calling 202-224-3121 and telling your Senators to vote “No” on the Senate bill.

Here’s an exercise:  ask a liberal to identify a single commentator from the left who rivals such conservative commentators as George Will or Charles Krauthammer.  Their usual answer?  The Washington Post’s E.J. Dionne, Jr.  This is very revealing, because it appears that Dionne has difficulty counting, let alone rivaling his conservative counterparts in intellectual stature.

In his column today, Dionne attempts to excoriate Senate Republicans for their obstructionism, including their alleged tendency to filibuster.  In one passage, he states that, “the extra-constitutional filibuster is being used by the minority, with extraordinary success, to make the majority look foolish, ineffectual and incompetent.”

No, Mr. Dionne, the Democrats are doing a splendid job of that themselves.  But regardless, this commentary raises a larger question:  can Dionne even count?  After all, does he not realize that the Republicans don’t even possess the number of members sufficient to filibuster?

Somebody send this man a calculator.