When an agenda is more important than the facts

The Washington Post has turned over its Sunday Outlook front page to Post blogger Ezra Klein, who denounces the use of the filibuster in the Senate. Unless there is “Senate reform,” as Klein calls it, the U.S. government will be unable to solve “a coming budget crisis, catastrophic climate change and an archaic and inefficient tax system,” among other problems. And “Senate reform” means eliminating the filibuster.

It's a recurring argument made mostly by the majority party at any given moment. Still, the filibuster lives on. “Members of both parties have become attached to this idea that they can block objectionable legislation even when they're relatively powerless,” Klein writes.

Putting aside some obvious answers — what's wrong with blocking objectionable legislation? — Klein twists the facts beyond recognition when he writes:

This isn't just a Democratic concern, though Democrats, being in the majority, are the ones raising it now. In 2005, Senate majority leader Bill Frist nearly shut the chamber down over the Democratic habit of filibustering George W. Bush's judicial nominees. “This filibuster is nothing less than a formula for tyranny by the minority,” he said at the time.

The issue to which Klein refers was the Democratic minority's decision to use the filibuster to block a slate of ten Bush nominees to the federal courts of appeals. That across-the-board blockade was unprecedented in Senate history. It caused some Republicans, then in the majority, to come up with a plan to eliminate what became known as the “judicial filibuster.”

The argument was that the judicial filibuster undermined the Senate's constitutional responsibility to give advice and consent on the president's judicial nominations. When legislation is filibustered, it's possible for a bill's sponsors to make changes that will satisfy opponents. But what happens when a nominee is filibustered? No advice and consent. The Constitution does not require the Senate to pass a national health care bill, but it does require it to confirm or deny the president's appointees. (There were other, less well-known practices, like so-called “blue slips” and holds, that were also used to block nominees, but since those practices were mostly used by home-state senators on nominees from their state or region, lawmakers grumbled about them but did not eliminate their use.)

So Republicans came up with what was called the “nuclear option” — a complicated parliamentary maneuver that would have broken the judicial filibuster. GOP lawmakers made clear at the time that they were not going after the legislative filibuster, which, as the majority party, Republicans weren't particularly fond of at the time but had no plans to eliminate.

That brings us to the quote from Bill Frist that Klein cites. It came from a November 2004 speech to the Federalist Society, a speech that was devoted entirely to the question of the judicial filibuster. Frist took care to say he was speaking about “one particular and unprecedented use of the filibuster” — that is, the broad use of the judicial filibuster. He specifically distinguished it from the legislative filibuster — a distinction that is nowhere to be found in Klein's article. Here's a portion of what Frist said:

From time to time Senators use the right to unlimited debate to stop a bill. A Senator takes the floor, is recognized, starts talking, and doesn't stop talking.

This brings Senate business to a halt. And it's called a filibuster.

Senators have used the filibuster throughout much of Senate history. The first was launched in 1841 to block a banking bill. Civil rights legislation was filibustered throughout the 1950s and 60s.

The flamboyant Huey Long once took the floor and filibustered for over 15 hours straight.

When Senator Long suggested that his colleagues — many of whom were dozing off — be forced to listen to his speech, the presiding officer replied, “That would be unusual cruelty under the Bill of Rights.”

The current Minority has not hesitated to use the filibuster to bring Senate business to a halt in the current Congress.

I have grave concerns, however, about one particular and unprecedented use of the filibuster. I know it concerns you, as well. And it should concern every American who values our institutions and our constitutional system of government.

Tonight I want to share with you my thoughts about the filibuster of judicial nominees: it is radical; it is dangerous; and it must be overcome.

Frist went on to make the advice-and-consent argument and say that the judicial filibuster denies “the Senate the right to carry out its constitutional duty.” And that is when he said that the judicial filibuster — the unprecedented, across-the-board use of one particular type of filibuster — “is nothing less than a formula for tyranny by the minority.” The text of Frist's speech makes clear he specifically was not talking about the legislative filibuster.

As it turned out, Frist and his fellow Republicans did not eliminate the judicial filibuster. Just the opposite — after the “Gang of 14” negotiations, the Senate virtually codified the judicial filibuster by announcing that senators have the right to filibuster a nomination if they feel there are “extraordinary circumstances” involved. Democrats gave up on their slate of filibusters but retained the right to use the tactic again in the future. (And now, with a Democrat in the White House, Republicans would do it, too, if they only had the votes.)

So the “tyranny by the minority” quote that Klein uses to argue for the elimination of the filibuster — an argument that Klein makes in the context of the ongoing debate over the Democrats' national health care legislation — in fact came from an entirely different set of circumstances.

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