Time to stop the Senate filibuster madness
Blocking qualified D.C. Circuit Court nominees is all about denying a president the right to pick judges to fill vacancies.


This is a column of shout-outs—and call-outs.

First, the shout-outs, starting with John Y. McCollister, who died recently at age 92 in Omaha, Neb. The name will be unfamiliar to most readers, but the cognoscenti will know John Y., as everyone called him, as a Republican member of Congress who served in the 1970s. By today's GOP standards, John Y. would be a raving liberal, but back in the day he was a straightforward Midwest conservative. He was also a workhorse, a thoughtful, honorable guy who cared about policy and cared about the institution of Congress. He did not shout or carry on. He just worked hard, for Nebraska and the nation. I knew him and really liked him, for all those reasons. John Y. was unusually capable and gracious, but there were a lot of members back then who cared about their own institution and worked hard to show it.

Next comes another, more highly publicized loss, that of former Speaker of the House Tom Foley. It was my great honor to have Tom as a dear friend for more than three decades; Tom Mann and I worked with him on many things, fought with him on occasion when he was speaker, kept up our relationship with him after he left Congress in 1995, and were lucky enough (thanks to his wonderful wife, Heather) to spend time with him at his house shortly before he died. We were especially grateful to Tom for stepping up to the plate and doing yeoman duty on the Continuity of Government Commission, a measure of his commitment to public service and concern about Congress in the aftermath of 9/11.

Anybody who did not see Bob Michel's tribute to Tom Foley at his memorial service should log on to C-SPAN.org and watch, and mourn. Michel, the Illinois Republican and former House minority leader, said, "We were too conditioned by our personal and political upbringing to assume that we had the market cornered on political principle or partisan superiority." He added, "One reason we were able to work together was we both saw the House of Representatives not as a necessary evil, but as one of the great creations of a free people."

I have not known finer people or public servants than Bob Michel and Tom Foley. As much as anybody or anything, they embody why I so love Congress, warts and all. And that is one big reason why it is so painful to watch the contemporary body, and see so few lawmakers who share their concern about their own institution.

I have thought that John Boehner, the current House speaker, fit in that category. But when he recently booted the House Appropriations Committee out of the Capitol offices they had occupied for 100 years so that he could get an extra balcony overlooking the mall, he got on another list instead. The systematic efforts by the leadership to devalue the House Appropriations panel, which have even moved its chairman Harold Rogers to complain publicly—decidedly not his style—do not reflect a respect for the House or its traditions.

And that brings us to the Senate. I have known Mel Watt for 20 years. He is one of the smartest and finest members of Congress, an all-round good guy who has worked hard and mastered a range of issues, including housing, in his long tenure on the House Financial Services Committee, which has the housing jurisdiction. Mel Watt was nominated by President Obama to head the Federal Housing Finance Agency—and was blocked by a Republican filibuster. The rationale that Watt was not qualified for the position was flimsy at best. If individual senators wanted to vote against him, they certainly have the right to do so on any basis. But to deny the president his choice for this post, a veteran and moderate lawmaker with sterling credentials and moral character, via filibuster, is nothing short of outrageous. Only two Republicans in the Senate, Rob Portman and Richard Burr, Watt's colleague from North Carolina, voted for cloture.

Watt was not the only victim of a drive-by filibuster; so was Patricia Millett, a superbly qualified and mainstream nominee for the D.C. Circuit Court of Appeals. Only two Republicans supported cloture here; Lisa Murkowski and Susan Collins, and three others voted "present" (which was no help, since anything but a vote for cloture is meaningless with a rule requiring 60 votes, period, to end debate). The rationale here was even more flimsy than that used against Watt, namely that Obama is trying to "pack" the D.C. Circuit. FDR tried to "pack" the Supreme Court by adding seats to the existing Court. Barack Obama is moving to fill long-standing vacancies on the D.C. Circuit. On this Circuit, thanks to a slew of retired judges appointed by presidents long gone, conservatives have an edge that Mitch McConnell is determined to keep no matter what.

When Harry Reid and McConnell reached a deal on filibusters in January, it was clear that a key component of that deal was that Republicans in the Senate would give due deference to a newly reelected president in his executive nominations, and would only oppose judicial nominations for courts of appeals under "extraordinary circumstances," which clearly means judges without clear qualifications or experience, or extreme ideologies. No one could accuse Millett of either of those characteristics. This is all about denying a president the right to pick judges to fill existing vacancies. Two more nominees for the D.C. Circuit are coming up soon, the real test of whether Republicans will continue to flout the January agreement and threaten fundamental comity in the Senate.

Watching senators like Lamar Alexander, Bob Corker, Mike Johanns (John Y. would not approve), Mark Kirk, John McCain, and Lindsey Graham join both of these filibusters, and Lisa Murkowski and Susan Collins join one, is painful. These are the problem solvers, and they have let reflexive party loyalty overcome what should be a protection for the Senate and its traditions. These kinds of filibusters are not a part of those traditions.

If the other two D.C. Circuit nominees are filibustered and blocked, I would support Harry Reid's move to change the rules now, to move from a 60-vote requirement to stop debate and vote to a 40-vote requirement to continue debate. The argument that if he does so, Republicans will do the same thing when they take the White House and Senate is a bad one: Can anyone doubt that McConnell would blow up the filibuster rule in a nanosecond if he had the ability to fill all courts with radical conservatives like Janice Rogers Brown for decades to come? I hope it does not come to this—and that the problem solvers in the Senate keep their titles, preserve their institution, and stop the filibuster madness.

This article appears in the November 7, 2013, edition of NJ Daily

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About the Author


Norman J.
  • Norman Ornstein is a long-time observer of Congress and politics. He is a contributing editor and columnist for National Journal and The Atlantic and is an election eve analyst for BBC News. He served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also served as a senior counselor to the Continuity of Government Commission. Mr. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future (AEI Press, 2000); The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann (Oxford University Press, 2006, named by the Washington Post one of the best books of 2006 and called by The Economist "a classic"); and, most recently, the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann, published in May 2012 by Basic Books. It was named as one of 2012's best books on pollitics by The New Yorker and one of the best books of the year by the Washington Post.
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