Most news accounts of the U.S. Senate’s planned 30-hour talkathon — or filibuster, or reverse filibuster, or whatever this exercise in through-the-night speechifying should be called — have evoked references to Frank Capra’s “Mr. Smith Goes to Washington.” But I keep thinking about Stanley Kubrick’s “Dr. Strangelove, Or How I Learned to Stop Worrying and Love the Bomb.” No question it’s theater — that’s why the Republicans are staging it — but what’s the script?
Ostensibly, Senate Republican leaders are forcing this oratorical marathon to highlight the Democrats’ success in using the mere threat of a filibuster to block President Bush’s ultraconservative judicial nominees. In fact, the Democrats have only used this threat in four instances, with the Senate confirming 168 of Bush’s judicial nominees. Still, Republicans are pouting and pissed, even though they played the same kind of serious hardball with President Clinton’s judicial nominees.
Republicans denied confirmation to more than one-third of Clinton’s nominees for the Court of Appeals, and in many instances the Republican-controlled Senate during the Clinton years refused to even hold hearings on judicial nominees. Yet by effectively blocking four appellate court nominees — Miguel Estrada (who has now withdrawn), Charles Pickering, Priscilla Owen and Bill Pryor — the Democrats have put the Republicans into a tizzy, so they’re determined to provide Americans with a 30-hour C-SPAN tantrum.
They claim they plan to talk about the obstructionist Democrats. But I wonder if more could be at stake. For months, rumors have been circulating on Capitol Hill that not only are the Republicans unhappy about the ability of the Democrats to block four of Bush’s judicial appointments, but also that they are even more concerned that Democrats may similarly be able to successfully filibuster a Bush nominee for the Supreme Court. Is it possible Republicans are planning to “go nuclear,” as they have threatened?
Here’s what that means: Senate rules place no limit on debate. The only way to stop a debate, if one or more senators who have the floor refuse to do so, is with a “cloture” vote. Under current Senate rules it takes three-fifths of the Senate, or 60 senators, to invoke cloture — and end a debate. That’s how you stop a filibuster. But Republicans today don’t have 60 votes.
Bill Frist, the Republican majority leader, has suggested changing the rules on cloture voting, with graduated reductions from a “super-majority” of three-fifths down to a simple majority, or 51 senators. But Democrats are not about to buy that, because Republicans have 51 votes. Republicans can’t change the Senate rules without Democratic support, because it takes a two-thirds vote, or 67 Senators, to change the Senate rules.
Enter Dr. Strangelove, or in this instance Vice President Dick Cheney. He has the power to drop a nuclear device — in the form of a ruling — that could change the Senate’s rules. Senate Rule XXII, which provides for a cloture vote, could not be invoked for nominations until 1949, for nominations were what was considered “executive business,” as opposed to “legislative business.” Apparently, it was a ruling of the chair — the vice president is the president of the Senate, pursuant to the Constitution — that changed Rule XXII in 1949, making it applicable to both the legislative and executive business of the Senate.
Thus, since the 1949 ruling, nominations have been subject to Rule XXII, and cloture. All Cheney need do is say that the ruling was wrong, and that would become the rule — because, under the controlling parliamentary procedures, it takes a majority of senators to overrule the chair, which Democrats don’t have.
Such an action by Cheney has been described on Capitol Hill as “going nuclear,” for it would be an extreme ploy, certain to be accompanied by a “nuclear winter” in the Senate. The Senate, by long tradition, has been a highly collegial body, operating largely by unanimous consent. This sort of tactic would break all tradition. If it is part of a secret Republican agenda, tonight or beyond, it will forever change the way the Senate operates.
In truth, the successful use of the filibuster to block extremist judicial appointees is one of the healthiest developments since our founding fathers required presidents to get the Senate’s “advice and consent” to fill judicial seats. Federal judges are given lifetime appointments; thus their influence extends long past the term of the president who selects them. To require a super-majority discourages either party from engaging in politicalization of the judiciary.
During the past four decades, selecting judges and getting them confirmed has become far more contentious. According to a report of the Congressional Reference Service, filibusters and clotures have been involved in 35 nominations, most of them since the late 1980s.
Notwithstanding the finger-pointing by the Republicans for filibustering four Bush nominees, this practice started in 1968 with Republicans, with the help of Southern Democrats (who now come to the Senate as Republicans), filibustering President Lyndon Johnson’s nominee for Chief Justice, Abe Fortas. Republicans blocked Fortas so Nixon could get the chief justice appointment, assuming, correctly, he would be elected.
It was pure politics, and it began the game that is now being played out. Indeed, Frist, the mastermind of this stunt in the Senate tonight, voted against cloture (and for filibuster) during the battle over one of President Clinton’s court appointees. But what is a little hypocrisy when wasting the Senate’s time pointing fingers?
We need to move beyond the game of playing politics with the federal bench, deliberately trying to influence the philosophical bent of justice. The judiciary was to be the nonpolitical branch, yet for the last four decades both presidents and Congress have worked to politicize it. Studies show that the outcome of lawsuits and prosecutions can be increasingly predicted by the political affiliation of the judges.
There’s a way to depoliticize judicial appointments: Both parties in the Senate should adopt the use of the filibuster, not in exceptional cases but as a standard operating procedure for all judicial nominations. Require a super-majority for all judges. A super-majority represents the will of the people, while a one- or two-vote advantage simply jams the will of a slight majority down the throat of the minority. The Constitution requires super-majorities to approve treaties, to override a presidential veto, and to remove an official who has been impeached by the House of Representatives. The Senate has super-majorities in its rule. By imposing a super-majority requirement — with the threat of a filibuster — it will end this practice, never contemplated by the nation’s founders, of presidents stacking the judiciary.
If Dr. Strangelove shows up at the Senate, however, to pull the trigger on what would be its own form of political terrorism, we will have entered a new era in the Senate, and there is no saying what will happen. But it won’t be pretty.
Editor’s note:This story has been corrected since its original publication.
John W. Dean served as counsel to President Nixon from 1970 to 1973. He now writes a column for Findlaw and is the author of several books, with the next to be published in January 2004, a biography of Warren G. Harding. .
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The Transportation Security Administration, a universally loathed government agency, is facing a shortfall, despite its more than $8 billion budget. Instead of having a debate over what effective airport security might actually look like and how much should reasonably be spent on the honestly rare threat of commercial-air-travel-based terrorism, there was a debate over how best to come up with the money needed for all the radioactive naked picture machines and bomb-sniffing dogs. The Democrats suggested passing on the cost of ineffective, cumbersome and intrusive security theater to citizens, via higher fees on airfares. The Republicans, even more predictably, suggested cutting spending that directly helps poor people to ensure there is enough to spend on stopping imaginary future 9/11s.
The newspaper account of the debate in The Hill just reinforced the Republican spin, highlighting the Democrats’ decision to make people spend more money on the hated TSA and downplaying the actual existing Republican alternative to the proposal, which was not “spend less on the hated TSA” but rather “raise money for the hated TSA by slashing needed aid to states.” The Democrats won, or “won,” and now they will earn the fruits of that victory: well-deserved scorn from everyone. And Ben Nelson (D-Troll Town) voted with the Republicans. (Though surely having users pay the fees for supposedly necessary security measures is perfectly conservative, isn’t it? Am I missing something here? I mean besides the fact that the two sides in this debate weren’t actually “liberal” and “conservative” but rather “people who want to come up with a way of paying for the oppressive and useless national security state” versus “people who want there to be an oppressive national security state but hate government spending on feeding and sheltering impoverished people.”)
I don’t know of anyone not employed by the TSA or some other arm of Homeland Security that believes the TSA does a good job and deserves its massive budget, but everyone in Washington apparently feels differently (and is terrified of being blamed for “voting to cut TSA funding” if there is another terrifying and deadly underwear bomber, of course). This is why everyone hates politics and Congress and Washington. This and Iraq. And the drug war.
Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene
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Questioning President Obama’s birthplace is cool again among Republican office holders and seekers, despite official poo-pooing from the GOP establishment. And nowhere is it more in vogue than in Arizona, where a birther is giving the GOP’s favorite candidate an unexpected run for his money in the U.S. Senate race.
U.S. Rep. Jeff Flake has everything going for him in his bid for a promotion to the Senate: Tons of money, six high-profile terms on Capitol Hill, and the backing of many Republican leaders, including the seat’s current holder, Sen. Jon Kyl, the Senate’s No. 2 Republican, who is retiring this year. He’s also supported by Arizona favorite son John McCain.
Flake was supposed to sail through the GOP primary without lifting a finger, after which he would go on to to crush Democrat Richard Carmona, a former Navy officer and former U.S. surgeon general, in the still right-leaning state.
But a new PPP poll out yesterday may have some Republicans worried, as Flake’s Republican opponent Wil Cardon has hacked 27 points off of Flake’s lead in just three months. Flake is still comfortably ahead by 22 points, but it’s nothing compared to the nearly 50-point lead he had back in February.
In Cardon, Flake is facing a surprisingly tough challenge from not only a political neophyte who has never held public office before, but a birther. When the Arizona Republic asked Cardon whether he believes Obama has sufficiently proven his citizenship, Cardon wouldn’t say, responding only, “I think people who run for office … ought to prove that they meet those qualifications.”
The poll shows Cardon’s rise has to do with his growing name recognition in the state. And while an early round of advertising certainly helped, it’s likely nothing helped as much to raise Cardon’s profile as his birther-curious comments a month ago, which captured national headlines and introduced Cardon to many people for the first time.
And Arizona, more than any other state, has been leading the charge against Obama’s birth certificate. The state legislature has advanced a Donald Trump-backed “birther bill” everyspringsince the president took office, which would require presidential candidates to present a long-form birth certificate before they can appear on the ballot. An Arizona State University poll from earlier this month found 60 percent of Arizonans support the bill.
Gov. Jan Brewer vetoed 2011’s version, which passed the state Senate 20 to 9 and the House 40 to 16, specifically objecting to a provision asking candidates to provide “circumcision certificates,” but it was reintroduced last month thanks to its popularity.
Just last week, Arizona’s Secretary of State Ken Bennett — who is a state co-chairman of Mitt Romney’s presidential campaign — formally requested the state of Hawaii provide proof that Obama’s birth certificate is indeed valid, explaining to a local radio station,”I’m not a birther. I believe the president was born in Hawaii — or at least I hope he was.”
But perhaps no one has done as much to advance the birther cause as Maricopa County Sheriff Joe Arpaio, who, it was revealed yesterday, used taxpayer dollars to send a deputy to Hawaii to investigate Obama’s birth certificate.
While it’s tempting to look at Cardon’s rise in the paradigm of the insurgent Tea Partier against the establishment-backed GOP, Flake is a favorite of the far-right grassroots movement, securing the endorsement of kingmaker Sen. Jim DeMint (R-S.C.) and several Tea Party groups.
Nonetheless, Cardon’s surge could trouble some Republicans still smarting from back-to-back upsets in Indiana and Nebraska, where insurgents Richard Mourdock and Deb Fischer defeated candidates favored by the GOP establishment and even DeMint, respectively.
Flake, however, has been clear that he believes Obama is indeed a U.S. citizen, much to the chagrin of birthers. And while it’s difficult to say with certainty if Cardon can credit his flirtation with birtherism for his rise in the polls, there’s been a startling uptick in the number of Republicans questioning Obama’s citizenship as the 2012 elections have ramped up.
North Carolina alone has seen a handful of GOP congressional candidates railing against Obama’s “poorly reproduced forgery” of a birth certificate, while even some GOP leaders such as Rep. Cliff Stearns (R-Fla.), who has led the charge against Solyndra and Planned Parenthood, have waded into the birther myth. Meanwhile, a PPP poll from March found that more than a third of GOP primary voters in Tennessee, Georgia and Ohio do not believe Obama was born in Hawaii.
How else to read this third wave of the birther myth but that it sells among many GOP voters?
Two recent Senate primary elections produced surprise winners, both of whom are now front-runners for their seats: Deb Fischer in Nebraska, and Richard Mourdock in Indiana.
That’s not all Fischer and Mourdock have in common. Both of them, as it happens, were born in the same year. Harry Truman was president of the United States. Perry Como, Tony Bennett and Mario Lanza dominated the Hit Parade; “I Love Lucy” debuted on TV, if you had TV; and Joe DiMaggio was still playing for the Yankees. They were born in 1951. If they’re elected, they will be 61 years old when they take office.
Fischer and Mourdock were first eligible to vote for president in 1972. That year, while Richard Nixon was sweeping to a landslide victory, 29-year-old Joe Biden was winning a Senate seat in Delaware; he wouldn’t even be eligible for the office until his birthday on Nov. 20. He’s about nine years older than them, but by January he’ll have completed a four-year term as vice president … after his 36-year run in the world’s most exclusive – and rapidly aging – club.
And that, in a nutshell, is a sign of one way the United States Senate has changed over the last several decades.
It’s fairly well known, I think, that the average age of members of Congress has been growing older and older over time. While the current 112th Congress turned slightly in the younger direction, before that virtually every Congress for some time broke records for age, with the 111th Senate peaking at an average of 63.1 years.
But what’s not been reported as far as I know is that one of the big factors in the aging of the Senate is in part a consequence not of high reelection rates or delayed retirement from senators too stubborn to quit, but of changes among incoming senators. Of course, not all newly elected senators are as old as Fischer and Mourdock, and Joe Biden was hardly typical of the 1970s, but as symbols of the change, you could do worse.
Let’s go to the numbers. I looked at the three most recent classes of senators, and four famous elections from the past: the Republican Revolution of 1994; the Reagan takeover of the Senate in 1980; the Watergate babies elected in 1974; and, stretching further back, the famous class of 1958, who would reform Congress and pass civil rights and Great Society legislation. In each case, I only looked at those elected in regular November elections of those years, ignoring those elected or appointed within election cycles (many of those, after all, are just caretakers who rapidly leave the Senate).
First, the recent groups. In 2006, the Democrats took over the Senate, and 10 new senators were elected. Their average age: 54.2 years. The next cycle was also good for the Democrats. Another 10 new senators showed up, with a whopping average age of 56.6. And then Republicans stormed back in 2010; the 13 new senators from that cycle were a slightly younger 52.8. Looking at individual senators, I count 10 of those 33 senators who reached their 60th birthdays before taking the oath of office – which also means that all of them would be on the far side of 65 before their terms expired.
Things look very different if we go back only a few years. The Clinton-era class of 1995 had 11 senators who averaged 48.8 years old. The 18-strong Reagan class of 1981 was only 46.7 years old, while the 10 aptly named Watergate babies tipped the clock at just 45.5 years, over a decade less than those sworn in at the beginning of the Obama presidency. Going way back to 1959, that illustrious group of 18 was just over an average of 50, thanks to the two oldest new senators in the whole study, 69-year-old Stephen Young of Ohio and Ernest Gruening, who was one of Alaska’s first two senators. However, and while I haven’t looked any further, those two look like total flukes; they are the only two 60-year-olds that year, and there are none at all in the Watergate and Reagan groups.
And Mourdock and Fischer are just par for the course in the current election cycle, which features strong contenders David Dewhurst of Texas (he’ll be 67 in January 2013), George Allen in Virginia (60), Angus King in Maine (67) and Elizabeth Warren in Massachusetts (63). Or look at Hawaii: In the Democratic primary, Ed Case (60) and Mazie Hirono (65) are contending to take on Linda Lingle (59). And I really don’t think Tommy Thompson is going to win in Wisconsin (I doubt he’ll make it through the primary), but if he does make it he’ll be 71 years old at the beginning of his term. And those are only the candidates with very good chances of winning.
Now, I certainly don’t have anything against individual older senators. Plenty of members of Congress have been excellent legislators in their 60s and even 70s. But I do think that there’s something wrong when most new senators in 2010 were out of college (where they wrote their term papers on typewriters) before Grandmaster Flash and the Furious Five unleashed the Message; perhaps more to the point, we’re still electing lots of new senators who grew up with Vietnam and the Soviet Union in the background, and hardly any who reached college when the Cold War was history instead of current events. Especially since many senators have said that it takes a full term for them to get fully up to speed – and after a full term, many of our recent new senators are on the far side of 70.
I really don’t have an explanation for why we’re nominating and electing much older Senate candidates these days, but I think it’s an unfortunate trend that can’t make for better representation or for a more engaged and active Senate. I’d like to see more senators in their 30s (and, yes, even in their 20s, ideally). I have no idea how to get there, but if the first part of solving a problem is to identify it, I hope this helps. If young people want Washington to be more receptive to their problems — from climate to student-loan debt — one solution might be to start electing people closer to their own ages.
Ron Paul and Rand Paul (Credit: AP/Charles Dharapak)
So Ron Paul says he is going to stop actively campaigning, but his supporters will continue to rack up delegates by storming state conventions. What will he do with these delegates? That is still unclear. (Barter them for gold?) What is the point of this strategy, exactly? Also unclear, but the Daily Beast’s Ben Jacobs today says it’s part of a “sneaky maneuver” to help his son Rand out. Ron will continue to consolidate power but will not appear to be actively sabotaging the party’s nominee. Dave Weigel says the maneuver is less sneaky and barely a maneuver: He doesn’t want it to be a huge embarrassment when he loses Kentucky, the state his son represents in the Senate.
Interestingly, though perhaps not surprisingly, Paul declined to endorse Libertarian Party nominee Gary Johnson, the former New Mexico governor who endorsed Paul in 2008. Johnson was, formerly, the Republican presidential candidate all those young “liberal” college stoner Ron Paul supporters should have gone with if they’d wanted to support a candidate who believed strongly in liberty but who wasn’t a racist Alex Jonesian conspiracy-mongering goldbug loon. But Johnson had “extensive executive experience” instead of a blimp and a sweet logo, so he did not win over many Paul fanatics.
Ron Paul’s strategy seems to be a gradual takeover of the Republican Party itself, instead of attempting to build a Libertarian alternative to the GOP. I think he’ll find that he can get the party to happily sign on, at least rhetorically, to his fiscal message, as they continue to ignore his popular and populist isolationism and his eminently agreeable but politically untenable positions on criminal justice and civil liberties, forever. The party, in other words, will continue to co-opt whatever they find electorally useful about the Paul phenomenon, as the Tea Party movement stole his iconography and messaging wholesale while attaching it to the same religious-right/nativist sentiment that has driven the party’s activist base for decades.
But Paul thinks the future lies with his son Rand, who shares many of his father’s enthusiasms and beliefs while also appearing to be more acceptable to the mainstream. Various Paul allies and a few other Republicans strongly suggest that Rand is gearing up for a 2016 run; which would mean, of course, that they expect Romney to lose, but that they need to not appear to be rooting for Romney to lose.
The problem is that what makes Rand Paul more acceptable to the mainstream of the Republican Party is what makes him more repellent than his father. Take, for example, Rand Paul’s funny joke this last weekend about Barack Obama and gay marriage.
The president recently weighed in on marriage. And, you know, he said his views were evolving on marriage. Call me cynical but I wasn’t sure that his views on marriage could get any gayer. Now it did kind of bother me, though, that he used the justification for it in a biblical reference. He said the biblical Golden Rule caused him to be for gay marriage …
And I’m like: What version of the Bible is he reading? It’s not the King James version. It’s not the New American Standard. It’s not the New Revised version. I don’t know what version he is getting it from.
Haha Barack Obama is so gay, he should read a Bible for once. Libertarianism!
Nick Gillespie, of the libertarian Reason Magazine, does not get this joke. The crowd, at the Iowa Faith and Freedom Coalition, did seem to get it, or at least they appreciated it. But Rand sounds very different when he speaks to Iowa conservatives than he does when interviewed by Gillespie and Matt Welch. (His address received a nice notice from Robert Costa of the National Review, who did not mention his funny joke.)
While Rand Paul may be, as Gillespie says, the most libertarian senator, he is also not an actual libertarian, as demonstrated by his support for anti-constitutional anti-immigrant legislation and his very vocal antiabortion position. He is also a dumb lout, and I tend to think that having the Senate’s most libertarian member be a dumb lout is not actually that good for the Libertarian movement. When he makes explicitly libertarian arguments, he makes them dumbly. When he goes all anti-gay talk-radio bigot culture warrior, which he does increasingly frequently, he does so dumbly. (If he wants to be a mainstream politician and presidential contender, it was certainly dumb to appear — more than once — on the radio program of Truther/Birther/New World Orderer/every-other-conspiracy promoter Alex Jones, but for some reason he almost entirely escaped mainstream press scrutiny for these appearances.) While I don’t feel much affection for Ron Paul, he seems both significantly smarter and leagues more principled than his son the senator.
If the “electable” face of libertarianism is a fratty anti-gay, anti-choice nitwit like Rand Paul, I will stick with socialism, thank you. And I wonder if the Paul family’s plan is to promote “liberty” or to promote the Paul family.
Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene
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John McCain, Lindsay Graham and Joe Lieberman (Credit: AP)
When John McCain, Lindsey Graham and Joe Lieberman join forces, you can be sure of one thing: It will involve state-sponsored violence. Today, they want us to arm Syrian rebels. Though, you know, what they really wanted to call for was actually bombing the hell out of Syria, until there is freedom. They’re just taking it slow.
The Senate’s three most predictable and least credible warmongering “moderates” frequently join forces to publish joint Op-Eds or hold press conferences and the one thing they always, invariably want is for the United States to have just a little bit more war than it currently has, somewhere far away. Sure, we could draw down in Iraq … or we could listen to McCain, Lieberman and Graham and draw back up. We could draw down in Afghanistan … or we could stay the course and keep sending troops there until we win! Americans may be tired of endless war with no coherent goal, but on the other hand, “only decisive force can prevail in [whatever country John McCain, Lindsey Graham, and Joe Lieberman are talking about now].”
As the Hill recently explained in a story on how John McCain, Lindsey Graham and Joe Lieberman were pushing for a resolution basically promising to make war with Iran, “Graham, Lieberman and McCain are considered some of the top foreign policy experts in the upper chamber,” because they always, invariably support military intervention everywhere for any reason, and that is invariably considered a sign of “seriousness” in Washington. If you don’t like waging wars everywhere, forever, you are a weird kooky hippie, and everyone laughs at you. If you believe that bombs and troops have the power to magically solve all problems, you are invited on all the Sunday shows every week to offer your sober analysis of the foreign situation.
You just never know which country these three will decide needs bombing next! One time the three amigos also took a trip to Tripoli to hang out with Moammar Gadhafi. (They invited Susan Collins along, though usually their sleepover parties are strictly “no girls allowed.”) Sadly, by April of last year, they were no longer friends with Gadhafi, and the three had decided that the United States should assassinate him. (That is not really legal but, you know, “war on terror” and “serious, muscular foreign policy” or something.)
One time Lieberman and Graham tried to hang out with a different senator and they all came up with an idea that didn’t involve bombing anyone but that made McCain mad and he yelled at them. Don’t hang out with John Kerry and try to solve climate change! Hang out with me and let’s try to convince everyone to bomb Russia or something!
Sadly, Joe Lieberman will be leaving the U.S. Senate soon, which means John McCain and Lindsey Graham will need to find a new fake-Democrat best friend to add a patina of “bipartisanship” to their endless demands for explosions and shooting and death.
Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene
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(Credit: Reuters/Frank Polich) 
(Credit: AP Photo/Ross D. Franklin) 
Joe Biden in 1972 (Credit: AP) 
Ron Paul and Rand Paul (Credit: AP/Charles Dharapak) 
John McCain, Lindsay Graham and Joe Lieberman (Credit: AP) 
