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[Originally in green]

The following excerpt raises so many issues:

As senators in 2005, Obama and Biden publicly defended the filibuster and the requirement of a supermajority to change Senate rules.

[Sen. John] McCain denounced any effort to change the rules unless there is a broad supermajority supporting the move. “We will destroy the very fabric of the United States Senate and that is that it requires a larger than numerical majority in order to govern,” he said.

First and foremost, what John McCain is saying is both correct and incorrect.  When we talk about getting rid of the filibuster, whether for nominees or for everything, we are talking about doing something truly extraordinary, which is changing the rules of the Senate in the middle of a Congress, with a mere majority of votes.  The potential consequences are so explosive that it has been aptly described as the "nuclear option." Changing the rules in this way would set a precedent that would allow a majority in the Senate to change the rules as they go along to suit their needs, and it could result in all manner of mischief and discord.  

Yet, the rest of McCain's brief argument is dubious and misleading.  For starters, the "very fabric" of the Senate is being destroyed, but it isn't being destroyed by the Democrats.  To see what I mean, go back to February 1st, 2001.  That was the day that former Senator John Ashcroft was confirmed as the U.S. Attorney General by a 58-42 majority.  At the time, the Senate was split 50-50 between Democrats and Republicans, which meant that Vice-President Dick Cheney split ties and gave the Republicans a technical majority.  John Ashcroft had just lost his reelection bid to Mel Carnahan, who had actually died shortly before the election in a plane crash.  Ashcroft was a divisive and controversial social conservative who the Senate Democrats had been glad to be rid of, and they were very unhappy to see him appointed to head the Justice Department.  Nonetheless, no Democrat raised an objection to having a debate and a vote on his confirmation.  In the end, eight Democrats (including liberal Russ Feingold) voted for Ashcroft's confirmation, while 42 Democrats voted against it.  Those 42 Democrats were signaling their displeasure, but each and every one of them could have stopped the nomination in its tracks by raising an objection that would have required 60 votes to overcome.  None of them did that.  

Compare that to what the Republicans are doing today.  They are requiring 60 votes for virtually all of the president's nominees, even ones that they overwhelmingly support.  In many cases, they don't object to the nominee but they just don't want the position filled.  That's the case with three vacancies on the DC Circuit Court of Appeals:

“The court is currently comprised of four active judges appointed by Republican presidents and four active judges appointed by Democrat presidents. There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven,” Sen. Charles E. Grassley (Iowa), the top Republican on the Judiciary Committee, said during floor debate.

The Republicans held up Richard Cordray's nomination to head the Consumer Financial Protection Bureau for more than a year just because they opposed the very existence of the agency.  

Then there is the case of Rep. Mel Watt (D-NC), who was just denied a debate and a vote over his nomination to head the Federal Housing Finance Agency.  Rep. Watt, who happens to be an African-American, has seniority on the House Financial Services Committee that oversees the agency.  But the Republicans don't want a Democrat to oversee the agency, so they are arguing that Watt is unqualified.

In a floor speech before the vote, Sen. John McCain (R-Ariz.) said that Watt’s lack of experience in the industry represented the sort of “extraordinary circumstance” that he was thinking of in 2005 when he first helped defuse a showdown over presidential nominations.

The Senate hadn't denied a confirmation vote to a sitting member of Congress since the 19th-Century, and that was really a dispute about slavery.  The optics of filibustering a black congressman, while calling him unqualified despite his years of experience working on financial issues, are so toxic that it is astounding that the Republicans were willing to take the hit.  

As should be clear, this isn't part of the historical "fabric" of the Senate.  This is a major aberration.  

But, you might object, back in 2005, Sens. Obama and Biden defended the Democrats' right to filibuster objectionable judges and defended the precedent that the rules could only be changed with supermajorities.  That's true, but things have changed.

First of all, we should distinguish between nominations to serve in the administration, which are basically term-limited, and nominations to the federal courts, which are generally lifetime appointments.  As you saw with the Ashcroft confirmation vote, the Democrats were willing to vote in protest against certain administration appointments, but they didn't block them or even require 60 votes for their confirmation.  They could have done that, but they just didn't.  

Secondly, when the Democrats did filibuster some of Bush's judicial nominations, they did so because they objected to something in those nominees' records.  They did not argue that no one, no matter how qualified and moderate, should fill those seats on the bench.  They wanted different nominees, not no nominees at all.  

So, the two things that have changed are that the Republicans are now requiring 60 votes for virtually all nominees, and they now using this nullification by filibuster to deny votes without any regard for the qualifications of the nominees.  In the latter case, they are deliberately keeping offices vacant just because they don't like the offices.  This is why you cannot accurately accuse Obama and Biden of hypocrisy, because you are comparing apples to oranges.  

Nonetheless, when John McCain says that the "very fabric" of the Senate is dependent on the idea that it "requires a larger than numerical majority in order to govern," he is correct.  Without that structure, the Senate would just be a smaller, less representative, version of the House of Representatives.  It would be redundant in most ways.  But the structure of the Senate, until very recently, has never required "more than a majority" to govern on most things.  That 60 vote requirement had been reserved for only the most contentious and divisive issues.  Yet, at this point, the Senate cannot even confirm non-controversial nominees, nor can it pass routine appropriations bills.  And it must be beaten and kicked to even agree to protect the nation's credit rating by paying our bills on time.

The structure of the Senate has been broken, and it has been broken by the Republicans' obstruction.  The rules are therefore no longer working and we have no compelling reason to preserve them.  Unfortunately, if the Republicans will not relent, the filibuster will have to go.  

Originally posted to on Sat Nov 09, 2013 at 06:20 AM PST.

Also republished by Community Spotlight.

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