home

Byrd on the Nuclear Option

by TChris

When Sen. Frist was last strutting about, threatening Democrats with the “nuclear option” if they even thought about filibustering a Bush nominee to a federal judgeship, Republicans seemed to hold unassailable power. These days, Frist’s threats seem hollow. In the words of our prophetic president: “Bring it on.” Democrats may finally have developed the backbone to fight against the Republican tactic of changing rules they don’t like.

Minutes after the Senate returned from a three-week vacation [Sen.] Byrd challenged Frist, a Tennessee Republican, in an unusually pointed floor debate.

"If the senator wants a fight, let him try. I'm 88 years old but I can still fight and fight I will for freedom of speech," Byrd said.

Frist’s claim that he only wants an up-or-down vote for judicial candidates is easily answered with two words: Harriet Miers. Byrd is unimpressed with Frist’s insistence that every nominee favored by Republicans is entitled to a vote.

Byrd shot back, "That's never been the rule here. Senators have the right to talk, the right to filibuster."

If Frist tries to limit that right, "He's going to see a real filibuster," Byrd warned.

< Editorialists Condemn Patriot Act 'Compromise' | Maye and the Blogosphere >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Display: Sort:
    Re: Byrd on the Nuclear Option (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:58 PM EST
    But who's freedom will you fight for?

    Re: Byrd on the Nuclear Option (none / 0) (#2)
    by cpinva on Sat Dec 17, 2005 at 01:06:58 PM EST
    i'm thinking frist might want to reconsider his hiatus from practicing medicine, hearts generally don't sass you back. seriously, i believe his political future is sketchy at best, any hopes of presidential seals on the doorstep probably went out the window with his "blind" trust troubles. on the other hand TC, don't bet the rent money on the dems and their sudden infusion of calcium in the spinal column. with few exceptions, they've shown the mettle of cream cheese in congress for five years, i don't expect that to change to stone overnight.

    Re: Byrd on the Nuclear Option (none / 0) (#3)
    by ras on Sat Dec 17, 2005 at 01:06:58 PM EST
    Dems will pose and threaten, and their supporters will do the same, but when the fight begins in earnest they'll back down (again), and claim a moral victory (again), and then go back to fundraising. From the highest leadership right down to the grassroots, the Dem party is a mass of shallow posers, and this latest back-down, when it comes, will prove it again; empty chatterers, no more. Watch & see.

    Re: Byrd on the Nuclear Option (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:58 PM EST
    Don't forget the original Byrd Speech on this, on March 1st. Excerpt: "If we restrain debate on judges today, what will be next: the rights of the elderly to receive social security; the rights of the handicapped to be treated fairly; the rights of the poor to obtain a decent education? Will all debate soon fall before majority rule?"

    Re: Byrd on the Nuclear Option (none / 0) (#5)
    by Dadler on Sat Dec 17, 2005 at 01:06:58 PM EST
    Ras, I don't see it. I'm as critical of the crappy Democratic Party as anyone, but even I think they're going to play hardball on this one. WHY would they back down? Frist is perceived very poorly by the public, if he's perceived at all. Bush is perceived worse. And their ability to "lead" the nation, is NOT something a majority of the American public believes in at all. They are on a sinking ship politically. Byrd's no bastion of virtue, but he's seen and played ALOT more political hardball that Frist has ever dreamed about. Alito, so far, is not ascending. He still could. But I just don't see the dems going along. I think this is a turning point issue. They may not succeed, but they are certainly reading the tea-leaves of American public opinion -- as they should in their capacity as "representatives" of their citizen constituents.

    Re: Byrd on the Nuclear Option (none / 0) (#6)
    by scarshapedstar on Sat Dec 17, 2005 at 01:06:58 PM EST
    ras, you seem to lack a null hypothesis.

    Re: Byrd on the Nuclear Option (none / 0) (#7)
    by ras on Sat Dec 17, 2005 at 01:06:58 PM EST
    Dadler, Why would the Dems back down? They'll back down cuz they're afraid of losing. No guts, no glory. The current pre-fight staredowns (in which no one ever stares down) mean nothing. What do we remember of, say, Joe Louis? His staredowns or his victories? We'll find out the truth on fb's when the bell rings in less than a month now, I guess. But I fully expect the Dems to (quelle surprise!) find a "sensible" reason to back off. They'll add lotsa snarly/threatening comments on their way outta the ring in the hope of saving face, and (plus quelle surprise!) their supporters will accept it. Leaders and followers alike will resume talking tough as if they really meant it. How was it Caesar described his manner of handling the conquered Gauls? Keep them well-supplied with luxuries and accustomed to defeat? Yup, sounds the like the Dems.

    Re: Byrd on the Nuclear Option (none / 0) (#8)
    by Che's Lounge on Sat Dec 17, 2005 at 01:06:58 PM EST
    hearts generally don't sass you back. Oh yes they do. Why do you think he went corporate? All niters in the OR can be a b***h.

    Re: Byrd on the Nuclear Option (none / 0) (#9)
    by Dadler on Sat Dec 17, 2005 at 01:06:58 PM EST
    Ras, The Dems are in a slightly different position these days, wouldn't you say? A cloud of scandal is hanging over the majority party, they're not popular, their war is not popular, their economics are not popular, their judgements are not popular. Perhaps you're right, and I wouldn't say I'd be surprised if the Dems caved, but I don't see it from a strategy point of view. Of course that's assuming they HAVE one, which I've never been sure of.

    Re: Byrd on the Nuclear Option (none / 0) (#10)
    by swingvote on Sat Dec 17, 2005 at 01:06:58 PM EST
    I would love to see the Democrats attempt a real filibuster; if only Frist had it within himself to force the issue. Robert Byrd says he'll shut the Senate down. Frist should make him do it. He's made the threat often enough without having to live up to it that I seriously wonder if he even understands what it is he is threatening anymore.

    Re: Byrd on the Nuclear Option (none / 0) (#11)
    by Dadler on Sat Dec 17, 2005 at 01:06:59 PM EST
    Justpaul, Do you really believe Frist has the public support, in the middle of a criminal investigation, that the venerable Robert Byrd has. Bring the fight on. You can have Frist 'til the cows come home, personality-bereft sack of wet brownies that he is. Byrd, whatever sh*t you try to dig up on him, is a veteran who's seen it all, and beating up on grampa with propaganda isn't going to play well. He's not the one on a sinking ship. Frist is. This will NOT play in the Repubs favor. The Dems will be viewed as standing up for principle. And the government and the nation can still function during a fillibuster, gimme a break. How fragile do you think your fellow Americans are?

    Re: Byrd on the Nuclear Option (none / 0) (#12)
    by swingvote on Sat Dec 17, 2005 at 01:06:59 PM EST
    Dadler, You are confused. I support Byrd's "right" to filibuster; I simply wish that they would stop the current practice of filibuster-lite and force a real filibuster (i.e., get rid of the two track process and force Byrd to truly shut the Senate down to stop a vote from happening, which means they vote on nothing until the issue is settled). I don't support Frist at all.

    Re: Byrd on the Nuclear Option (none / 0) (#13)
    by Dadler on Sat Dec 17, 2005 at 01:07:00 PM EST
    Justpaul, Harriet Miers didn't deserve an up or down vote according to the Republican leadership, so they've already set themselves up for failure with that argument here. They can't say trust us, because they've lost that trust. I'm just saying the Dems COULD play this to win. Whether they finally get their act together and do it is another story.

    Re: Byrd on the Nuclear Option (none / 0) (#14)
    by Dadler on Sat Dec 17, 2005 at 01:07:00 PM EST
    Justpaul, I AM confused, you're right. Just realized it after my last post a minute ago. Misread yours initially. Sometimes I'm real stupid like that. Forgive the off-kilter replies that ensued.

    Re: Byrd on the Nuclear Option (none / 0) (#15)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:07:00 PM EST
    Dadler - You are wrong again. It wasn't the "leadership," but the rank and file who rejected her. And she withdrew when she realized what was going on.

    Re: Byrd on the Nuclear Option (none / 0) (#16)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:07:00 PM EST
    et al - Filibusters have quite a history. If you would like to read some of it, try this. I would think that Senator Byrd, as an ex-KKK member would like to remember this.
    Since its inception in 1841, the filibuster of legislation has been used to block legislation protecting black voters in the South, in 1870 and 1890-91; to block anti-lynching legislation in 1922, 1935, and 1938; to block anti-poll tax legislation in 1942, 1944, and 1946; and to block anti-race discrimination statutes on 11 occasions between 1946 and 1975. The most famous filibuster of all time was the pro-segregation filibuster of the Civil Rights Act of 1964, which went on for 74 days.
    Yes, no doubt about it. We must never let the majority rule.

    Re: Byrd on the Nuclear Option (none / 0) (#18)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:00 PM EST
    Jim, I see no reason to ban the filibuster just because it has been used in the past to thwart good legislation, but I do believe that the mere threat of a filibuster should not be enough to do so. If Robert Byrd truly opposes Samual Alito, he should be more than willing to stand up in the well of the Senate and explain why, for as long as it takes. He has said he is willing to do so. I think he's bluffing. And if Frist would force the issue, we would find out who is right. Senators (and Representatives) have gotten far to comfy in their little enclave and have forgotten what it is that they are there for. If Robert Byrd wants to bring the Senate to a stop, and forgo discussion on all other legislation, he should be obliged, post haste. To put extra emphasis on the matter, Frist should call a special session over the Christmas holiday and keep them all there to discuss this important nomination. With most Americans off for a three- or four-day weekend, we could even watch it live on CSPAN, assuming the Dems don't once again demand a closed-door session. Let them earn their fat salaries for a change. In the meantime, I see nothing wrong with their not voting on yet another West Virginia pork project for the interim.

    Re: Byrd on the Nuclear Option (none / 0) (#19)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:00 PM EST
    Does no one else wince every time Senator Byrd refers to the filibuster as an issue of free speech? It's a parliamentary procedure to prevent a vote. The only speech involved today is a formal note of intention to filibuster. Taking a vote is not a form of censorship. Also, just in passing, JimakaPPJ, you might have noted that one of the senators carrying out the notable filibuster of the Civil Rights Act of 1964 was none other than Senator Robert Byrd himself.

    Re: Byrd on the Nuclear Option (none / 0) (#20)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:07:00 PM EST
    Clint - Thanks for reminding me. Darkly - The quote was just to remind everyone that it has been used in the past to thwart the desires of the majority, for bad reasons, and if allowed to continue will do so again. justpaul - The filibuster is not in the constitution, and a super majority is required only for:
    The U.S. Constitution was written to establish a general presumption of majority rule for congressional decision-making. The historical reasons for this are clear. A major defect with the Constitution’s precursor, the Articles of Confederation, was that it required super-majorities for the making of many important decisions. The Framers of our Constitution deliberately set out to remedy this defect by empowering Congress to make most decisions by majority rule. The Constitution thus presumes that most decisions will be made by majority rule, except in seven express situations where a two-thirds vote is required. The seven exceptional situations where a super-majority is required include: overriding presidential vetoes, ratifying treaties, approving constitutional amendments, and expelling a member.


    Re: Byrd on the Nuclear Option (none / 0) (#21)
    by swingvote on Sat Dec 17, 2005 at 01:07:01 PM EST
    The filibuster is not in the constitution, and a super majority is required only for: Jim, I never said it was, hence my use of the quotation marks around "right". Nevertheless, very little of the operating procedure of the Senate is spelled out in the Constitution, and a filibuster does not, in and of itself, set a higher standard for the eventual vote on a nominee (or the legislation); it is a part of the rules under which nominations and legislation are debated. By the current Senate rules, Byrd has the right to filibuster, and I don't have a problem with that, per se. I just want him to be required to actually filibuster, not merely threaten to do so. If you want to argue whether such a filibuster should be allowed, feel free to do so, but don't expect much sympathy here until it's Trent Lott filibustering Hillary Clinton's first nomination or the next attempt at HillaryCare. Then you'll see everyone who opposes "the nuclear option" screaming from the rafters that the filibuster is a vile thing that cannot be tolerated. Question is: Where will you be then?

    Re: Byrd on the Nuclear Option (none / 0) (#22)
    by swingvote on Sat Dec 17, 2005 at 01:07:01 PM EST
    Jim, Something else which occurs to me: There is no requirement for a vote on judicial nominations at all within the Constitution; only that the President shall appoint judges with the advice and consent of the Senate. If the filibuster is such a bad idea, why doesn't Frist just forgo a vote altogether and send a letter signed by 51 Senators to Bush stating that the majority of Senators consent to this nomination? Would you support such a move?

    Re: Byrd on the Nuclear Option (none / 0) (#23)
    by scarshapedstar on Sat Dec 17, 2005 at 01:07:01 PM EST
    Jim's link:
    Now for the first time in 214 years of American history an angry minority of Senators is seeking to extend the tradition of filibustering from legislation to judicial nominees who enjoy the support of a majority of the Senate.
    Reality:
    Such claims, however, are at odds with the record of the successful 1968 GOP-led filibuster against President Lyndon B. Johnson's nomination of Abe Fortas to be chief justice of the United States. "Fortas Debate Opens with a Filibuster," a Page One Washington Post story declared on Sept. 26, 1968. It said, "A full-dress Republican-led filibuster broke out in the Senate yesterday against a motion to call up the nomination of Justice Abe Fortas for Chief Justice."
    And the kicker? I got that from an old post on this very site! Scroll down for a truly surreal comment thread in which Jim ignores the entire post and repeatedly claims that the GOP has never filibustered a judicial nominee.

    Re: Byrd on the Nuclear Option (none / 0) (#24)
    by Bill Arnett on Sat Dec 17, 2005 at 01:07:01 PM EST
    I truly believe that the very best thing that could happen for America, at this point, WOULD be the complete shutdown of the Senate and the most aggressively VICIOUS attacks on the poor, the elderly, the infirm that I have ever seen. God, I just WISH that Senate dems would simply refuse "unanimous consent" to ANYTHING offered by the Rethugs until they finally get the hint that dems will no longer stand for the status quo, morally corrupt, fear-mongering party the rethugs have become (or, more probably, they more than likely have always been, they just haven't held all the reins of power.). By far and away the public does not realize that the Senate can be brought to a virtual standstill by simply withholding "unanimous consent", and that much of the evil the rethugs have already wrought could have been stopped by this simple refusal to be screwed by the majority.

    Re: Byrd on the Nuclear Option (none / 0) (#26)
    by Sailor on Sat Dec 17, 2005 at 01:07:01 PM EST
    Bill Arnett, I agree, thanks.

    Re: Byrd on the Nuclear Option (none / 0) (#27)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:07:02 PM EST
    Darkly – Is that why you bought Enron stock on the way down? Scar – You write:
    Scroll down for a truly surreal comment thread in which Jim ignores the entire post and repeatedly claims that the GOP has never filibustered a judicial nominee.
    Yes, please do folks, because the following is the only comment I made that even mentioned judicial nominations. Now, can anyone tell scar that “repeatedly” means more than once? And can someone tell scar that what I did was challenge Glenn M? And that I was right. He couldn’t and didn’t.
    Posted by PPJ (aka Jim) at March 18, 2005 09:50 PM Glenn M - Can you provide us a link detailing the "many times" the Right Wing used the fillibister on judical nominations? Somehow, I don't think you can. et al - The issue is simple. Can the Repubs change the rules? The answer is, yes.
    Really scar. If you’re going to tell fibs you shouldn’t provide links that prove you wrong. BTW – Abe Fortas resigned in very questionable circumstances. And I am being kind. Poor choice on your part.
    In 2005 Abe Fortas again became a focus of controversy as the Republicans considered changing Senate rules to eliminate filibusters of judicial appointments, a plan referred to as the "nuclear option." Democrats cited the Fortas filibuster as a precedent for their more recent filibusters. Republicans tried to point out differences between their 1968 actions and what the Democrats have done. For example, Republicans cited judges that were filibustered in 2005 had clear majority support while Fortas had(only) 45 votes in his favor the 1968 cloture vote that followed five days of debate…,
    BTW – After you read the above, revisit the quote from my link you so thoughtfully provided.
    Now for the first time in 214 years of American history an angry minority of Senators is seeking to extend the tradition of filibustering from legislation to judicial nominees who enjoy the support of a majority of the Senate.
    BTW scar, here is another comment I made from your favorite old thread.
    Posted by PPJ (aka Jim) at March 19, 2005 07:09 PM DA - I have noted that what we should have is debate and a vote. No matter who is in power. Your complaining over the filibuster says that in the arena of ideas, you have lost.
    justpaul – A filibuster isn’t such a bad idea. What is bad is the requirement for a super majority, which is not in the constitution, to shut down debate and force a vote. Your comment “By the current Senate rules” is quite accurate.

    Re: Byrd on the Nuclear Option (none / 0) (#28)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:07:02 PM EST
    justpaul - Wait! I just realized I'm wrong. A filibuster shuts down debate... What I should have said was cloture...

    Re: Byrd on the Nuclear Option (none / 0) (#30)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:02 PM EST
    I just realized I'm wrong. A filibuster shuts down debate... What I should have said was cloture... Jim, you are confused. A filibuster is the forced continuation of the debate by a Senator who will not yield the floor and continues to debate the issue, albeit by himself for the most part. It is done to stop a vote, not to stop debate. A cloture vote shuts down the debate and moves the Senate to a vote on the issue. And while it is true that there is no requirement of a supermajority cloture vote on nominations in the Constitution, there is no statement at all on what it takes to end debate in the Constitution. That was left to the Senate to decide once it was seated, and it has decided that a vote of 60 Senators is required to do that. The requirements for supermajority votes within the Constitution which you mention are requirements for votes to pass or approve something, not to end debate on it. And as I said above, there is no requirement for a vote on nominees at all, so it's hardly surprising that there is no mention of how many votes it should take to end debate on them.

    Re: Byrd on the Nuclear Option (none / 0) (#31)
    by jimakaPPJ on Sat Dec 17, 2005 at 01:07:02 PM EST
    justpual - You cannot debate an issue with yourself in the context of what the Senate is. Plus, when a Senator takes the floor and will not yield it - a filibuster if you please - the debate is over with. And you are correct that the Senate makes it own rules. The number of votes to invoke cloture has changed several times over the years. And since it has, there is no reason that it cannot be changed again. Plus, after cloture takes place, I believe that a motion to recognize another Senator could be made and approved. I.e. A vote is not automatic. As for your claim that a vote is not required, how else could the Senate advise that they consent? After all, there are 50 states with 2 Senators each.... DA - Very nice comment, especially the "fool's" part. Never miss a chance to insult, eh? To be more specific, you should remember that money is made when the market is going up, and when the market is going down. It does, however, require a fair degree of knowledge to play both sides. Me? I moved to a 100% cash position just below the top of the market in the fall of 2000, and stayed out until about two years ago, and then came back in very slowly. So far I have seen about a 25% gain, and am thinking strongly about selling. The fundamentals show me a forthcoming 30% drop. Bears make money, bulls make money…pigs get slaughtered.

    Re: Byrd on the Nuclear Option (none / 0) (#33)
    by swingvote on Sat Dec 17, 2005 at 01:07:02 PM EST
    Jim, I can't tell if your splitting hairs to extend this "debate" or if you really believe this stuff. If a Senator is standing in the well of the Senate discussing an issue on which they intend to vote at some point, the debate is still going on. Even if everyone else leaves the room, the debate continues, because the Senator still has the floor and is still talking about the issue. You seem well-enough informed on past instances of actual filibusters, so I'm faced with a decision on whether you are being intentionally disingenuous or just really haven't read the things you claim to have read. For instance: Your cited example of Byrd having filibustered the 1964 Civil Rights Act is an instance in which Byrd harangued the Senate for hours on end to avoid a cloture vote being taken to end debate on that bill. That was a classic filibuster. It doesn't matter that he was the only one talking, as this is always the case (except for when they start interupting each other of course). Only one Senator is talking at one time, every time they debate a bill. Just because a Senator drones on for hours doesn't mean debate has stopped. Surely you understand this. And no, Jim, once a cloture vote has been passed, debate does end and a vote on the pending legislation goes forward. A call for a cloture vote is another thing altogether, and yes, that can be interupted by another Senator who wishes to further extend the debate, but even when that happens, they must hold the cloture vote first to see if 39 other Senators agree with the one objecting that debate must go on. If not, the cloture vote passes and they move to a vote on the issue at hand. As or how the Senate could make its advice and consent known without voting, I believe I covered that above. A simple letter to the President signed by 51 Senators (possibly 50 and the VP) would suffice to register the Senate's consent under the Constitution, as no mention of a required vote is made in that document; it only says "with the advice and consent of the Senate". The fact that in the past the Senate has chosen to excercise this prerogative by holding a vote does not mean that it has to be done this way.

    Re: Byrd on the Nuclear Option (none / 0) (#34)
    by swingvote on Sat Dec 17, 2005 at 01:07:02 PM EST
    Jim, I suspect that the difficulty you are having here is that you are confusing a real filibuster with the filibuster-lite that the dual-track model the Senate now uses allows. Under this system, the Senate Majority Leader can move other legislation forward when a bill (or nomination) is stalled on the floor by Senators who have merely threatened to filibuster it (Byrd's tactic here and elsewhere). As a result, Byrd, says he will filibuster Alito's nomination and, rather than force himt o actually do it, Frist caves and moves something else forward in its place while, in theory, negotiations go on in back rooms to get Byrd to back down and allow a vote on the nomination. The problem with this is that the Republicans have never been good at it and Frist is terrible at it. Byrd knows full well that Frist will just keep moving all that good West Virginia pork-barrel spending forward for as vote as long as he remains intransigent on the Alito nomination, so that's what he does. The only way to get around this is for Frist to find some courage and force Byrd to mount a real filibuster, which will require him to hold the Senate floor by continually talking about the nomination (although this requirement is rather loosely interpreted to allow almost any speech that could possibly bear on the subject - reading from the bible is a classic in these cases). In such a situation, Byrd either talks himself so hoarse he can no longer speak, he passes out from fatigue, he drops dead, or he finally gives up and cedes the floor. But for this to happen, Frist has to keep the Senate in session with enough Senators to vote on the issue when Byrd finally yields, which he (Frist) lacks the courage to do. The end result is what we have here: Byrd doesn't have to do anything but be an obstinate old man who wants his way and Frist goes on smiling and pretending he's going to do something real for a change. It's enough to make one long for the days of Tom Daschle, who at least knew how the game is played, even if he stood for almost everything that is wrong in America.