More Byrd on the "nuclear option"

After comparing the "nuclear option" to Hitler's takeover of Germany, Sen. Robert Byrd (D-WV) has published a Washington Post op-ed on the subject that's almost as offensive.

The whole article is a rhetorical sleight of hand where filibusters are equated with "free speech," even though (a) legislators don't have a right to unlimited debate, (b) the modern filibuster usually ends debate on an issue, and (c) Byrd speaks for hours on the Senate floor (see this Michael Crowley article in The New Republic). He's not exactly being oppressed, nor would he be if the nuclear option was enforced.

That's not to say that there isn't a serious issue here, but it's about precedent and legislative procedure, not "speech."

Byrd opens with ridiculous hyperbole:

A "nuclear option" is targeting the Senate. No, this isn't some terrorist plot. Rather, some in the Senate are considering dropping a legislative bomb that threatens the rights to dissent, to unlimited debate and to freedom of speech.

All three of these are absurd. The nuclear option would not limit the rights to dissent, debate and freedom of speech. As a citizen of this country, Byrd retains all three. But there are no rights to unlimited debate and freedom of speech in a legislative context. If there were, legislatures would never be able to make decisions by voting -- they would just talk endlessly. Moreover, Byrd doesn't actually want to debate these nominees more -- they've been talked into the ground. "Unlimited debate" is code for setting their nominations aside.

In the second paragraph, Byrd finally makes clear what he's talking about:

President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year. To force a vote on these nominees, some senators are hoping to launch a parliamentary weapon aimed at the heart of open and extended debate. By a simple majority vote, a Senate filibuster on judicial appointments would be "nuked" for all time.

Note how Byrd links "open debate" with "extended debate" even though they are not the same thing. And of course, the judicial filibuster would not be "'nuked' for all time" -- it could be reinstated by vote of the Senate, though it's probably unlikely.

Next, Byrd tries to justify his rhetoric with unsubstantiated slippery slope claims that portray the proposed rules change as the first step toward despotism:

It starts with shutting off debate on judges, but it won't end there. This nuclear option could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy. It could destroy the Senate's very essence -- the constitutional privilege of free speech and debate.

To understand the danger, one needs to understand the Senate. The Framers created an institution designed not for speed or efficiency but as a place where mature wisdom would reside. They intended the Senate to be the stabilizer, the fence, the check on attempts at tyranny. To carry out that role, an individual senator has the right to speak, perhaps without limit, in order to expose an issue or draw attention to new or differing viewpoints. But this legislative nuclear option would mute dissent and gag opposition voices.

Byrd again invokes the Constitution, but the "Constitutional privilege of free speech and debate" is simply not at issue here. Nor is it clear why "[t]his nuclear option could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy" or that it would "would mute dissent and gag opposition voices." First, the "nuclear option" pertains only to judicial appointments. But more importantly, the Senate can already shut down debate with 60 votes. I don't remember Byrd complaining that people's rights were being violated when he has voted to end filibusters in the past.

Byrd then suggests that the President is reinterpreting the Constitution, even though he knows (from the copy he constantly waves around) that the filibuster is not in there:

We have heard the president call for an up-or-down vote on his judicial nominees. But nowhere in the Constitution is an up-or-down vote -- or even a vote at all -- guaranteed, and the president cannot reinterpret our nation's founding document to achieve his political goals. Those who disagree with the president in this matter will be labeled "obstructionists," but nothing could be further from the truth.

Then it's on to more claims about violations of freedom of speech and slippery slopes:

A federal judge is selected for a lifetime appointment. Senators must apply their best judgment to each selection. If a senator believes a nominee should not be confirmed, that senator has a duty not to consent to confirmation. Yet, for the temporary goal of confirming a handful of objectionable judicial nominees, those pushing the nuclear option would callously trample on freedom of speech and debate.

If senators are denied their right to free speech on judicial nominations, an attack on extended debate on all other matters cannot be far behind. This would mean no leverage for the minority to effect compromise, and no bargaining power for individual senators as they strive to represent the people of their states.

Yes, Americans believe in majority rule, but we also believe in minority rights. Our liberties can be truly secure only in a forum of open debate where minority views can be freely discussed. Leave it to the House to be the majoritarian body. Let the Senate continue to be the one in which a minority can have the freedom to protect a majority from its own folly.

The worst line in the whole article might be the claim that "Our liberties can be truly secure only in a forum of open debate where minority views can be freely discussed." Minority views are discussed at extreme length in the Senate. That will not change.

Personally, I actually lean against the "nuclear option," but Byrd's argument is misleading and overblown. No matter what happens, the Republic will live on.

Update 3/5: Jeffrey Toobin has a useful article on the "nuclear option" debate in the New Yorker.

Update 3/7: The Wall Street Journal alleges that Byrd supported rules changes that were pushed through on majority votes during the Clinton administration. If true, it's not surprising.

Update 3/7: A commenter has caught another distortion in the op-ed -- Byrd claims that "President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year." His next sentence does begin "To force a vote on these nominees," which is an implicit acknowledgment that their nominations were filibustered, but the phrasing is still misleading in context -- the Senate did not reject their nominations. They were blocked by filibuster, but that's a different matter altogether. Rather than address the merits of that tactic directly, Byrd uses another rhetorical trick to try to legitimize it.

Comments

[Menlo Bob]

Nothing is left to be said. Senator Byrd lies exposed. Democrats interested in challenges to President Bush ought not allow Byrd to own any issue such as this. For their part, Republicans should encourage Byrd to further flights of fancy.

[Pablo]

Is this true: "President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year"?

Did the entire Senate reject seven of these nominees, or were they not permitted a vote? If they were voted down, is it possible that the newly configured Senate would vote to approve them? In which case, why shouldn't a President be allowed to nominate whomever he wants, cognizant of the shifting landscape of the Senate? Or is Byrd's argument that once a nominee has been rejected, he has been blackballed for life? I'd like the former Klansman to point to the section of the Constitution where that is addressed.

And what happened to the other 13? Obviously, they were not approved by the Senate, or they wouldn't have been renominated. Did they get a hearing in Committee? A vote in Committee? Please fill in the details.

[Observer]

From Byrd's op-ed: "President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year."

Byrd is a liar.

The Senate did not "reject" Bush's nominations, because his nominees were never put to an up/down vote, which is the whole point of the rule change.

[Pablo]

Thanks, Observer, as that is what I thought the truth was. And, so, Byrd is lying about factual matters, in addition to misleading, as Brendan ably points out in his post.

What of the other 13? Did they not get a Committee hearing at all? If they did, did they not get a Committee vote?

As the saying goes: Don't argue facts, only opinions, because facts can be checked. The gasbag from West Virginia should heed the wisdom of that adage.

[Joseph]

Hello,
I could not help but notice that all comments re: Sen. Byrd are negative. Are those the only ones you allow?
Why all the flap about Byrd's comments? What he SAID is a far cry from the lies that Mr. Bush is trying to sell the American people. The tax cuts and benefits given to the upper class are real and still going strong. this administration's policies, which are somewhat secretive, especially to those who know it all already, have sold out our govt. to special interests, namely the rich and the corporations.
The war was never represented for what it is; a gravy train for the bush crime organization.
If this language is too strong for you, try listening to the radical right.
Senators are on the stump lying through their teeth about social security.
Let's go back a bit: remember WMDs, the flawed intelligence system, the stolen elections, the incredible high gas, energy, insurance ,and banking costs all from this corporation friendly administration.
How about immigration? Bush sits silently, does nothing. Does not invoke the laws already on the books for employers who higher illegal. There are more hands off issues by bushco.
I think the feeling that is under the surface in this country is very dangerous.
The entire Christian, "our religion is better than yours....". The insidious censorship that gripped the country are all indications of the rise of a fascist state. Check out the fascism index. The definition of fascism and it's characteristics.
The media is paid off as are many others who play at bipartisanships but who are deceptive in actuality, down right dishonest.
Sorry for the disagreement.

[Brendan Nyhan]

Just to be clear, I don't censor comments based on what views they express, though I reserve the right to delete those that I deem to be inappropriate, abusive, etc.

[sbw]

Brendan, I'm not sure the differentiation is made between an up-or-down vote on an appointment and a vote on a piece of legislation that can be amended until it wins enough votes to overcome a filibuster. You can't amend an appointment.

[sofla]

The right of unlimited debate, and unlimited amendment, is not generally guaranteed in a legislative body. In the House, for instance, a 'rule' for every legislative matter is created which may and typically restricts the time of debate allowed, and the number of amendments that can be entertained, and amendments must be germane to the bill.

However, that isn't true in the Senate, where the right of unlimited debate and amendment HAS been the rule, from the beginning of its existence. That right was considered so fundamentally important that a supermajority was required to end debate, invoke cloture, and call the question to a vote. It USED to be MORE than 60%; this is already a far weaker supermajority than used to be required by Senate rules.

So, make no mistake. A change in the rules to allow cloture by simple majority rule certainly DOES have the effect of stopping debate and/or amendment. If this is supposedly only in the case of judicial nominees, yet it is a precedent and a crack in the wall of presumption that unlimited proceedings ought to the rule, for which a supermajority provides the exception.

[Ken Summers]

Maybe I'm missing something crucial, but it seems to me that if the "right to filibuster" is so fundamental to free speech, EVERY legislative body in this country would be constitutionally required to allow it.