Month: May 2005

I can’t add a lot to the rivers of pixels that have been expended on the filibuster “deal.” Obviously, it’s not a good deal for Republicans, who for the future get only vague assurances of not filibustering except in “extraordinary” cases, which means nothing. Plus, as with cease-fires in war, an agreement of this nature is only useful if the will to enforce it can be summoned at the first violation. Making a deal when you have your forced mobilized always makes it harder to rally them again later.
Then again, it’s not such a great deal for Democrats, either, as the Republican promises in the deal are entirely unenforceable once the Democrats filibuster again on ideological grounds. Thus, the only thing the Democrats get is to step back for a while from the brink at a time when the GOP may or may not have had the votes.
In that light, the deal’s not a disaster overall – both sides went home unhappy, and Bill Frist got humiliated, but Bush does get a floor vote on three appellate court nominees, so unlike the typical Trent Lott-era deal at least there should be something lasting to show for all this.
Anyway, the pressure will only increase now on both parties not to compromise again at the next stage, when a Supreme Court nominee comes up. It’s gonna be ugly.

NRO provides a little historical context.

Matt Yglesias argues:

But let’s say conservatives are right. Let’s say the main problems with the US healthcare system really are overconsumption (i.e., third party payment encourages people to use health care services they don’t really need) and overregulation (i.e., mandated features on insurance plans designed to make them better just price them out of the range of too many consumers) and that, therefore, HSAs are a good solution. Isn’t universal health care still the way to go?

I think Yglesias undercounts the conservative objections, which also include lack of individual choice, erosion of the profit motive needed to drive further innovation, and the interposing of unnecessary third-party insurers. But anyway, let’s look at his solutions:

First, eliminate the tax preference for health insurance as compensation vis-à-vis money.

This would politically difficult, but I’d certainly agree that having people go through their employers to get health care involves an extra level of intermediary that does no good.

Next, implement a national catastrophic care program where the government will pick up the tab for any health expenses you incur over a “deductible” of $X which you need to pay out of pocket. Providing catastrophic care to the entire under-65 population shouldn’t be particularly expensive.

I’d agree with this – the present system is backwards. Insurance should be there, whether public or private (and in some cases public makes sense) to pick up costs that we can’t handle, not to pay ordinary expenses.
Of course, this still leaves Health Savings Accounts as a logical solution for those intermediate-cost expenses, things that you can and should save for – Yglesias doesn’t get to those.

*A Vietnamese reporter for TIME Magazine during the Vietnam War apparently used his position to spy for the enemy.
*This probably means less than meets the eye. But if it doesn’t . . .
*Is Cuban dissident Luis Posada Carriles a terrorist or a freedom fighter? I say both, and we should hold him accountable for terrorism. Should he be turned over to Cuba or Venezuela? I’d say he should be. Of course, some may disagree on the grounds that Cuba, in particular, has a record of torturing prisoners. Presumably those who are opposed across the board to “rendition” of prisoners to countries with outstanding warrants and records of torturing prisoners in the past will oppose extradition of Carriles.
*Speaking of Cuba: Down with Fidel.

A classic of the genre. Via Kaus. (BTW, what keeps happening to Mickey’s permalinks? They’re like Brigadoon).

Poliblogger has another systematic look at obstruction of judicial nominees, and why it’s particularly unprecedented to see this level of obstruction when the president’s party controls the Senate. Unfortunately, the data only goes through 2003. Via Wizbang.
Dale Franks has a good discussion of income inequality and (1) its connection to the fact that people who make more money tend to work more and (2) the fact that people tend to make more money as they get older. Neither of which should be news except for the New York Times’ persistent efforts to oversimplify the issue. Of course, that doesn’t mean there aren’t plenty of hardworking people who make peanuts, but the broad generalizations drawn from statistics on the subject are almost always misleading.
And Ann Coulter has a typically blistering column comparing Newsweek’s willingness to run a poorly sourced Michael Isikoff item on Koran-flushing with Newsweek’s unwillingness to run extensively sourced Isikoff items on Clinton scandals. (Standard disclaimers about Coulter columns apply).

Brendan Miniter wants Mitt Romney to run against Ted Kennedy in 2006 to promote Romney’s chances of running for president in 2008. This is horrendously bad advice. First of all, you don’t run for a new job two years before you run for president. It’s too hard and looks too transparently careerist. Second, Romney fought the good fight vs. Ted once, and if Ted couldn’t be beaten in GOP-friendly 1994 he never will be. Third, you lose and it rubs some of the luster off no matter how expected. Fourth, to be a serious 2008 challenger Romney probably needs to get re-elected, hard as that may be.
Maybe, maybe, if Romney wanted to run in 2012 and had a chance of winning this race, I’d advise him to consider it. But I still would balk at that advice. If he wants to go to the Senate, wait until Kerry retires or Ted dies.

With the showdown on judicial filibusters escalating, Republicans have an opportunity rare in Washington: they possess the raw political power to do essentially whatever they want, in the sense that on most or all of the filibustered judges they possess the 51 votes neeed both for confirmation and to change the rules to eliminate obstacles to confirmation. The debate has thus focused on two questions about how they should use that power: whether they will suffer an electoral backlash, and whether changing the Senate rules or otherwise ramming through nominations will come back to haunt them when, some day, the Democrats regain a majority in the Senate.
Let’s review the options:
1. The “Nuclear Option”: Changing Senate Rules to require 51 votes rather than 60 for “cloture” of debate on a judicial nomination, i.e., to break a “filibuster” and force a floor vote.
Pro: Will eliminate possibility of Democratic filibusters for the remainder of Bush’s term. This is particularly appealing now that Harry Reid has threatened to filibuster a Bush Supreme Court nominee. (Link via Daly)
Con: There are three downsides here. One is that Republicans will suffer at the polls. I’m not convinced of that – breaking the filibusters should help solidify the conservative base, and couldn’t inflame the liberal base more than it is already. And to the extent that moderate swing voters pay attention to judicial fights at all, the GOP has probably taken its lumps with them already for the nomination of conservative judges, which Bush has broadcast widely. (Although I will concede that the phrase “nuclear option” is the winningest Democratic spin since the government shutdown). Certainly, almost every Senate race in which judicial nominees was a major issue went to the GOP, except for Mary Landrieu and Ken Salazar, both of whom got elected/re-elected in part by making promises of support for votes on judicial nominees (promises they never intended to keep, but that’s another story).
The second is that the GOP would be disarming itself in future battles over the judiciary. First of all, I don’t buy this, because it assumes that if Republicans don’t change the rule, Democrats won’t either. Yeah, and I have a bridge to sell you in Brooklyn. Banking on future Democratic good faith is foolhardy in the extreme. Democrats aren’t even pretending to promise that they won’t support the same thing later; consider their past track record on changing the filibuster rule to suit their purposes.
The third concern is a related one, one that is of more concern and is openly discussed by liberal pundits: that disregarding the availability of the filibuster for judges will give political cover to wholesale elimination of the filibuster for legislation. This concerns me more, because the filibuster as a brake on bad, complicated legislation is a check and balance that conservatives have depended upon in the past (see: Hillarycare), and may again. Unlike the judicial filibuster, which I suspect Democrats will bulldoze as soon as they are in position to benefit from doing so, eliminating the filibuster entirely would be seen as a radical move even by the media – but perhaps less so if the filibuster were completely eliminated for nominations.
The filibuster for legislation is, as a matter of policy, more sensible – while Mickey Kaus argues that the filibuster’s compromise-forcing function is more important in judicial nominees, I disagree because compromises in legislation are easier to reach – and more likely to yield intended results – because both sides can be assured of what they are getting. Judicial nomination compromises often wind up a lose-lose situation for principled conservatives; should we accept a system in which “compromise candidates” wind up as Souter or Blackmun?
Bottom Line: I’m willing to live with the “nuclear option,” but I’d prefer the more targeted solution I discuss below.
2. The “Conventional Warfare” Option: A number of commentators (see here) have suggested that Republicans should force the Democrats to live up to their rhetoric and actually stage an old-fashioned, talk-to-exhaustion filibuster. I’m not sure if this requires an actual rule change or just an announcement or interpretation of the rules, but you’d need a majority of the Senate to enforce it.
Pro: Filibustering is hard work, and Democrats would quickly get exhausted by the talkathon. A filibuster would spotlight the issue, putting pressure for a resolution that the GOP could use to its advantage.
Con: Several. First of all, the media would likely buy the Democrats’ argument that the GOP was shutting down the government if the old-time filibuster ended up squeezing out all other Senate business. Second, anything that raises the public stakes makes it harder for Democrats to visibly back down. Third, I gather that – although I’ve forgotten where I read this – the old rules would only require a single filibusterer to be present, while the whole majority would have to be there (although I see no reason why that couldn’t be altered by rule change). And when a Supreme Court nominee comes up, the Dems would never budge.
Bottom line: This ain’t gonna happen, because it’s physically taxing on the Senators themselves, none of whom wants to be martyred to a debate about judges. I’m also less and less enthusiastic about how it would play out in the media.
3. The 60 Seats Option: Change nothing, and use the judges issue again in 2006 in hopes of getting to 60 seats.
Pro: Judges have been a winning issue, and the zero-sum nature of the issue keeps social conservatives motivated and mobilized. The map favors the GOP: Republicans are defending 15 seats to the Democrats’ 18, one open seat to the Dems’ three, and are defending fewer seats in states they lost in 2004. A gain in Senate seats is very possible.
Con: A decent chance at a net gain, yes; but 5 seats would be a shocker, and the most likely outcome is no more than a 1-seat net pickup, as both sides have their vulnerabilities and hurdles to clear. Local conditions (e.g., poor challengers) always reduce the number of seats truly in play, and sooner or later the trend against the incumbent party is bound to catch up with Republicans. In the meantime, nothing gets done. Plus, social conservatives may start to feel disenchanted if nothing out of Washington-as-usual gets attempted.
Bottom Line: Fear and greed both suggest that this option could happen, as nervous Republicans yet again kick the issue down the road. But the momentum and logic of the battle, plus Frist’s presidential ambitions, makes this an unsatisfying outcome. Besides, how often do you get to rewrite the rules to fix the process? It’s time to use that power.
4. Cut a Deal: Trent Lott seems to have taken a stab at this, but was swatted down by Bill Frist – cutting a deal where the GOP tables the rule changes but some of the nominees get a vote.
Pro: Get a few judges in.
Con: The underlying stalemate remains, the stakes escalate for a Supreme Court battle, and even the Democrats look hypocritical for changing direction on people they’ve tabbed as “extremists”.
Bottom Line: The Senate loves deals, but I just don’t see what’s in it for either side to cut one.
5. The Advice-Without-Consent Option: Patterico suggested, back in November, having Republicans vote on non-binding resolutions of support to (a) formalize the fact that filibusters were blocking nominees with majority support and (b) force fence-sitting Democratic Senators to come out from behind the procedural battle and admit that they oppose these nominees.
Pro: Put people on the record.
Con: Voting to filibuster a nominee in perpetuity is basically a stronger form of voting them down. Can we shame the Democrats into changing positions? I don’t think so – the liberals are proud of what they’re doing, and the rest are already cemented in place by intense pressure from party leadership. And you might lose a few liberal Republicans who oppose the filibuster but don’t support the nominees.
Bottom Line: This should have been tried before the elections. But it’s a PR stunt, not a solution.
6. The Smart Bomb Solution: OK, we’ve been through the rest. Some of the options above are ones I can live with. But the GOP shouldn’t be satisfied with a solution that’s temporary, and shouldn’t demand one that goes further than necessary to fix the problem. And thinking long-term in politics means not only blocking tactics abused only by the other side, but removing powers you yourself have used – like tying up nominees in committee and “blue slips” that enable single Senators to hold up certain nominees – if they have contributed to the overall problem.
What’s the problem? Not the filibustering of judges per se, but the open-ended, indefinite delay of floor votes on judicial and other nominees, especially by a minority of the Senate. The filibuster is a new and extreme addition to the arsenal of delay, one not used before; the lone precedent Democrats can cite is Abe Fortas, but that was a short-term filibuster (with bipartisan support, of an already-sitting Justice) designed at getting more information about ethics charges. That’s a function we shouldn’t preclude: the use of the filibuster, of delay in committee, or even of “blue slips” to delay a nominee long enough to get information and build opposition.
But there is a world of difference between the use of parliamentary delaying tactics to allow the opposition to coalesce and using those tactics to allow the losing side to delay any action at all once the lines of support and opposition have hardened. Neither the Constitution nor the historical advice-and-consent practices of the Senate (by “historical” I mean, more than the past three Administrations or so) provide any support for a minority power to perpetually obstruct nominees with majority support. The judicial filibuster is not, perhaps, a wholly new creation, but it’s a plant that has grown up rapidly in recent years to obstruct and choke off all the other traditional growths around it. The best solution isn’t to pull the old fellow up by the roots but to prune it back to reasonable size.
There are various ways to do this, but I would suggest a sliding scale: initially, 60 votes needed for cloture, for forcing nominations out of committee, or for overriding a “blue slip.” Once the first cloture vote fails, the threshold starts dropping, say, by one vote every 30 days or some such until you get to 51. The goal should be to ensure that every nomination (except for those truly made at the last minute) gets an up or down vote within about a year, sooner of course if there’s broader support or if the White House can successfully exert pressure for a vote, as will generally be the case for a Supreme Court vacancy.
This is a stable solution that could become permanent. It meets the needs of majorities while preserving a role for the opposition. It also, of course, allows a Senate of one party to bottle up nominations by the other party, which was the source of tension between 1991 and 2002, a tension many voters thought they were resolving by turning over the Senate to the party of the President. But the descending threshold ensures – I think* – that such opposition will have to go on the record repeatedly and will have to be uniform across 51 votes, enabling the president to take his case to the people and target the wobblers. (* – This assumes that the minority can make a motion for cloture. I believe that’s the rule but I could be wrong).

Michael King notes Cosby critic Michael Eric Dyson comparing Cos to Timothy McVeigh on the Today show (in what was, given Today’s politics, naturally a sympathetic interview). Words fail me.

Byron York, Kevin Aylward and Captain Ed all note the impropriety of Harry Reid smearing Sixth Circuit nominee Henry Saad by saying that the Democrats are holding up his nomination because:

“Henry Saad would have been filibustered anyway,” Reid said. “He’s one of those nominees. All you need to do is have a member go upstairs and look at his confidential report from the FBI, and I think we would all agree there is a problem there.”

Now, look: if there’s something really nasty in Saad’s record, Bush should pull the nomination. And I am, in fact, uncomfortable with the idea of keeping genuinely material information from the public. But given the nature of FBI files – which tend to be loaded with unverifiable hearsay and gossip – that’s unavoidable.
Either way, given the confidential status of a nominee’s FBI file, the Democrats just should not go smearing the guy with dark hints about his secret files. There’s also an elephant in the living room that York and the others ignore: the uniquely explosive nature, in the current climate, of dropping hints about the classified FBI file of an Arab-American (I believe Saad, if confirmed, would be the first Arab-American to sit on a federal court of appeals, but I could be wrong about that). If that’s not McCarthyism, I don’t know what would be. As far as playing to crude stereoytpes, that’s like calling a black judge stupid (whoops, Reid’s already done that). Where’s CAIR and James Zogby on this one?