With everything that has been happening in the U.S. Senate regarding the Estrada nomination, I’ve been giving some thought to the concept of the filibuster. I don’t want to make this a debate on the Estrada nomination, but on the concept of the filibuster itself.

One of the basic rules of our governmental system is that (aside from a few constitutionally-mandated situations) majority rules in legislative bodies. If (in a 100 member Senate) 51 Senators want a bill passed, it passes. If only 49 want it passed, it doesn’t pass.

There are several ways to block a vote on a subject at all. One, of course, is to kill the bill in committee. This method I can accept simply because it is impractical to have the entire Senate vote on every issue that comes before it. So, fine, set up committees to deal with various spheres of influence and have them first vote on which bills get sent to the full Senate. No problem.

However, I’m struggling to find a justification for the fillibuster. I would think that once the bill hits the full Senate, it should be voted on by the full Senate. I can’t find a single (valid) reason for the filibuster to exist, other than to allow a minority to block a bill that they know will pass against thier wishes. This, however, goes contrary to what (I believe) is a basic prinipal of our governmental system (majority rules in legislative bodies, as I stated earlier). And if an issue is vital enough that it should require more than a simple majority (such as a presidential impeachment, for example), then let’s have it in the Constitution (or even as legislation). But to allow the filibuster, potentially, could require a 60% vote for any legislation.

Is there something that I am missing? Is there a reason to have the filibuster? Is there some vital need for it in the Senate (I know the House does not have the filibuster). And would the Senate be better off getting rid of it?

Zev Steinhardt

Majority rule is all well and good, most of the time. But there are many antimajoritarian devices built into the Constitution–the Bill of Rights, for example, which protects individual conscience and expression from majority rule, and protects individual liberty and property against invasion by a government acting in the name of the majority. The filibuster is not built into the Constitution, but it is an outgrowth of an antimajoritarian feature built into the Senate rules: unlimited debate. The Senate bills itself as the world’s greatest deliberative body, largely because of its tradition of unlimited debate–unlimited in time, and unlimited in topic.

Sometimes the “majority” is a mob. A majority can often be stampeded into acting in haste. The tradition of unlimited debate was designed so that at least one of the two legislative chambers valued deliberation and listening, and could not be stampeded into a rush to judgment until every senator had been heard out:

From U.S. Senate, Historical Minute Essays.

The filibuster is a natural outgrowth of unlimited debate. Perhaps an unfortunate outgrowth (which is, I suppose, what this thread is about) in some cases. But not necessarily always. After all, haven’t you seen Mr. Smith Goes to Washington? Without the filibuster, that fictional Senate would have rushed into condemning Senator Smith–but, by using the filibuster in order to buy some necessary time, Smith’s supporters marshal the information that they need before Smith is run out in disgrace.

Actually, believe it or not, I haven’t seen the movie. However, I’ll put it on my “to see” list.

I don’t mind seeing debate on a topic (heck, that’s what we’re in this forum for, isn’t it?) and the ability to debate on a topic is valuable. But if the very reason for the filibuster is to allow for more debate on the topic at hand, , should we not require that the filibustering senator actually talk on the topic (and this should apply all the more so now that the senator doesn’t even have to talk at all!)?

Zev Steinhardt

The nice thing about the filibuster and other things is that it allows the minority to block something that they really care about that the majority doesn’t really care about. Filibustering is not a casual event, it happens only in the most extreme circumstances. And if the majority still feels the issue is really important then it gets passed after the filibuster is done anyway.

The filibuster is only really effective when the majority supports something but it’s not something that is really a top priority, but the opposition has the subject as their absolute most important issue.

I like that.

The most famous use of filibusters has been to prevent civil rights legislation.

There’s something to be said for having a different rule for filibusters of laws vs. filibusters of nominees.

Question: The President can make a recess appointment of certain positions, avoiding temporarily the need for Senate approval. Can he make a recess appointment of a judge? That would presumably force the Senate to actually take a vote if they wanted to overturn the appointment.

The Senate rules allow debate that is both unlimited in time and unlimited in topic–that is, there is no requirement that a speech be germane to the topic under consideration, as there is in most deliberative assemblies. There are at least two supporting policy considerations:

First, the presiding officer (whose ruling a majority would presumably support) cannot muzzle a lone senator by ruling him or her out of order because his or her speech is not germane, any more than the presiding officer can rule the senator out of order because the speech is taking too long. A senator is the only judge of what he or she will talk about.

Second, because the rules allow debate on any topic at any time, the Senate leadership cannot confine particular topics to certain inconvenient times. A senator can harp on a theme as often as he or she wants, whenever he or she has the floor–just as the Roman senator Cato the Elder ended every speech, on whatever topic, with his plea that “Carthage must be destroyed!” (a policy to which he ultimately persuaded the Roman Senate). The majority thereby cannot avoid an unpleasant topic–as the House of Representatives did when it adopted the gag rule that prevented the House from hearing any antislavery petition throughout four Congresses.

Certainly the rules that allow unlimited debate, like most rules, are subject to abuse. But getting rid of the rules in order to curtail the absuses may buy order at too high a price.

Zev, I hope that you enjoy the movie. It is one of my all-time favorites.

Yes. In fact, the second Chief Justice, John Rutledge, was a recess appointment. (He had formerly served as an associate justice.) The Senate withheld its advice and consent, so his service expired when that session ended.

The President making a recess appointment does not necessarily force a vote on confirmation. A recess apointment expires at the end of the Senate’s next session whether or not the Senate votes on the nomination, so voting the appointment down doesn’t necessarily evict the appointee from office any sooner.

Excellent discussion of why the topics of debate aren’t limited.

In addition to the anti-majoritarian rules of the senate, we should recall that it was designed as a fairly aristocratic chamber.

I think the filibuster and cloture rules are brilliant. They effectively allow any one or two senators to declare an issue is so important that a simple majority is not enough. As has been pointed out, there are lots of times that this works in generally good ways.

But the real kicker is the cloture vote. This allows senators to avoid voting on the real issue. This is crucial in that they can save face to their constituents, more or less, while not voting for legislation (or appointments) they don’t approve of.

For example, suppose Olympia Snowe doesn’t want Estrada appointed. If there’s a filibuster, she has the option of relying on a mostly party-line vote in a closely divided senate and loses no face at all! Or, she can abstain, (IIRC) and cause her party to miss the magic number. All without voting against the issue her party supports!

Sure, it’s frustrating sometimes, but if the will of the people, as expressed by their representatives in the Senate, is so closely divided that an additional 10% can’t be pursuaded to vote for it, chances are good that it’s not an urgent issue, and allowing more time for the people to make up their minds is probably a good thing. For example, if the people really want judges who are very conservative (or, to be fair, for judicial appointees to be able not to answer questions) then they can vote for more republican senators, and the next time Estrada comes up, he will pass.

[hijack] nogginhead’s concept seems to be fairness = Democratic spin.

Estrada supporters maintain that he has answered all relevant questions. Evidence for that POV is that when Democrats were offered the opportunity to ask additional questions last week, they didn’t choose to ask a single question. Also, the liberal Washington Post agrees.

Some of Estrada’s attackers claim he’s a “stealth candidate” with unknown positions; others claim he’s “very conservative.” Not only are both charges unsupported, they are actually contradictory.[/hijack]

I suppose one could amend nogginhead’s post to say that the filibuster allows a Senator to act in bad faith and get away with it.

I admit that I’m not too well-informed about Estrada.

My comment was based on the AP report … I don’t consider the AP biased, but I suppose if you don’t like the news, you might consider any source to be biased.

In this story, the president is indirectly quoted as saying that he won’t provide Estrada (again) to the Judiciary committee and won’t release his writings. In contrast, Tom Daschle is quoted as asking for questions to be answered and documents be made public.

That’s what leads me to believe that it’s fairest to say that he’s not presenting his thinking.

BTW, I can’t imagine why the GOP would be afraid to release this information unless it’s fairly damning, but that’s just an unfair personal opinion.

I agree that my position could be interpreted as allowing a senator to act in bad faith and get away with it-- to the extent that the public remains ignorant of the rules of the senate and the votes of their senators. Otherwise, it just allows the senators to save face, something I believe members of both parties have taken advantage of.

I don’t like filibusters. This may because I grew up in the 1970’s, when filibusters had an unsavory reputation because they had been used in recent memory almost exclusively to block civil rights legislation.

The concept of requiring a supermajority to limit debate is fair enough; indeed, it can be found in Robert’s Rules of Order, wherein to “move the previous question” requires a 2/3 majority. In fact, the Senate rule allowing cloture by a 3/5 majority is actually more restrictive than the standard parliamentary rule.

But the standard rule is set in a context where debate must be germane, and members can be called to order for redundancy or off-topic rambling. To allow unlimited, off-topic debate, and still require a supermajority for cloture, doesn’t just allow abuse, it is an invitation to abuse.

As we see in the Estrada case. Democrats aren’t filibustering to gain time, or to present additional arguments, or to prevent a rush to judgment. They are filibustering to permanently block a vote which they would otherwise lose. And Republicans, of course, did exactly the same thing when they were in the minority.

There are two alleged issues - the questions and the memos. Both are trumped up. The Democrats have now demonstrated that there is no real issue of unanswered questions, because they failed to ask questions when the opportunity was offered, again and again, as recently as a week ago.

They demanded Estrada’s internal memos from the time he worked in the Solicitor General’s office. These internal memos are considered confidential or privileged. All seven living ex-Solicitors General agree that it would be improper to release these memos. Four of the seven are Democrats.

Furthermore, the Senate Democrats have no particular goal in looking at the memos; it’s purely a fishing expedition. If they wanted to know about Estrada’s performance in the Solictor General’s office, they could simply ask the four Democratic SG’s who he worked for. All four of them support Estrada’s nomination.

Not being completely familiar with the intricacies of Senate rules (or Robert’s Rules, for that matter), I am curious how debate is suspended so that other business can be transacted. It was my impression that the question at hand had to be debated until it was decided or tabled.

How is the Senate fitting other things in? Why isn’t this “filibuster” holding up all other Senate business?

[pointless nitpick]
** jklann **, your math is a little off. Requring a 2/3 majority, 66%, is more restrictive than the majority required for cloture in the Senate (3/5ths, or 60%).
[/pointless nitpick]

As for the filibuster, what goes around comes around. The Republicans used it to kill health care reform in the early '90s, and they felt it was justified in that case to overrule the majority in the Senate because Clinton was trying to crate a huge new government beauracracy. They have no leg to stand on now to say that the majority should rule just because the Democrats feel just as strongly about an issue.

If a vocal minority hate a bill enough to filibuster against it, it may be worth it to let them speak their peace instead of rushing to judgement.

The majority is not always right.

Besides, I love the concept that one lone and determined senator can stand up for what he believes in and keep talking until he can’t carry on. Without it, Mr. Smith Goes To Washington wouldn’t have been such a great movie. :slight_smile:

My favorite quote from MSGTW:

“Wild Horses will not drag me from this chamber until I’ve said everything that I’ve had to say!”

Personally, I find that the filibuster is useful, if not used too often. A filibuster every other year, for example, can work quite well.

However, filibustering everything you don’t like runs the risk of making a joke out of the system.

(As for Estrada: I don’t know enough about him to comment, and I believe that it is high time that the major parties stop playing these silly judicial games that have been going on for the last 8 or so years. At the rate it’s going, there may soon be no judges, as every time one is proposed, someone will find a reason to block.)