image: filibuster

In The Matter of the Hagel Filibuster

After several Republican senators pledged to block the Senate from providing advice and consent on Chuck Hagel’s nomination, Majority Leader Harry Reid filed cloture on the matter.  Senator Reid then complained on the Senate floor that this “is the first time in history that a presidential nominee for secretary of defense has been filibustered. What a shame.”

In an attempt to justify their procedural maneuvering, Senators Lindsey Graham and John Cornyn made two bizarre statements in their interviews with Foreign Policy that would make George Orwell blush.

Let’s first consider Senator Lindsey Graham.  He claims that he opposes a “filibuster” of Mr. Hagel, and is instead merely placing a “hold” on the nomination. This is the kind of slippery Washington-speak that has left so many Americans fed up with Congress.  That’s because Senator Graham’s “hold” is actually a threat to filibuster.  And Senator Graham knows that it’s far easier to place a hold than to carry out a talk-a-thon live on C-SPAN. By placing a mere hold, Senator Graham gets all of the benefits of a filibuster but none of the trappings of senatorial duty (like actually explaining himself to his colleagues until he runs out of things to say).

As this excellent report by the Congressional Research Service (C.R.S.) explains, “holds” are merely “silent filibusters.”  A “hold” is not even provided in the Senate rules; it is an informal device that senators use to signal their intent to wage a filibuster.  In the words of the C.R.S. report, “‘holds’ require no public utterance.”  It would have been more accurate for Senator Graham to say that while he opposes a talking-filibuster of Mr. Hagel, he fully supports doing so silently from the comfort of his office.  Piece of cake!

Then there’s the whopper from Senator John Cornyn.  It’s about the size of his home state of Texas.  To justify his efforts to block a majority of his colleagues from voting, he says that “[t]here is a 60-vote threshold for every nomination.” Actually, there’s not a 60-vote threshold for “every nomination.” In fact, there hasn’t been a sixty-vote cloture vote on a cabinet nominee for any of President Obama’s other cabinet officers.  (They’ve blocked plenty of other would-be judges, though).

But even more peculiar about Senator Cornyn’s factual error is that he would say it in the first place.

That’s because Senator Cornyn wrote a law review article back in 2003 for the Harvard Journal of Law & Public Policy titled “Our Broken Judicial Confirmation Process and the Need for Filibuster Reform.” In that article, he forcefully argued that “regardless of whether individual Senators support or reject a particular nominee, once a majority of the Senate is ready to act, it should be allowed to do so.”

He goes on to claim that filibusters of presidential nominees “offend the constitutional structure and separation of powers because they effectively reorder the Constitution’s allocation of executive power with respect to appointments.”  Senator Cornyn lambasted a situation like the Hagel nomination, wherein “a minority of Senators has hijacked the process and will not allow the majority to conduct the nation’s business.”  He adds that “[s]imply put, filibusters are the most virulent form of unnecessary delay one can imagine.”

Of course, Senator Cornyn is entitled to change his views on the matter.  But before doing so, perhaps he should have taken the time to read his own article published just a decade ago.  Particularly the part where he said that filibusters of presidential nominees are “an abomination.”

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About Stephen Spaulding

Find Stephen Spaulding on Twitter at @SpauldingCC.

2 Responses to “In The Matter of the Hagel Filibuster”

  1. Ted W. Daniel, Esq. February 14, 2013 at 8:54 pm

    As a lawyer, I think that, in the matter of appointments, the president has an Ace he could play that does not apply to other filibusters. He could challenge the idea that Senate *Consent* requires *Confirmation*–an idea of Senate procedure, but not actually in the Constitution.

    “Confirmation,” by its very nature, implies an overt action. The Senate has traditionally engaged in a vote to “Confirm” the presidential appointment. However the word “Consent” does not necessarily imply such an overt act.

    Just as often, the word “Consent” denotes a lack of objection. For example, when a woman makes a charge of non-consentual sex, we do not ask whether she delivered a formal statement accepting sexual relations. Rather, the relevant question is whether she said “No.”

    Likewise, the Constitutional language of “Consent” could be interpreted as the failure to take a “No” vote, objecting to the presidential appointment. So, the question naturally arises, are there reasons to prefer the lack of objection standard over the overt vote of acceptance? Yes, there are.

    First and foremost, Article II, Section 2 [2] of the Constitution gives the president two powers: the power to “nominate,” and the power to “appoint.” By changing the “Consent” of the Senate into “Confirmation,” the Senate has, in effect, usurped the appointment power of the president.

    Secondly, the contrast between the process for appointment and the process for making treaties confirms this. The Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” them. The process of making Treaties adds an additional element of an actual vote, “provided two thirds of the Senators present concur.” The failure of including such a positive vote requirement in the same paragraph argues strongly that no such vote is required.

    The president should simply declare that lack of objection counts as Consent. Then, after giving the Senate full opportunity to Advise and Consent, he should simply announce that there had been no objection, and proceed with his Constitutional power of appointment. If anyone objects, let them take upon themselves the burden of obtaining Supreme Court review.

  2. Reid needs his head examined, How many times does the repuglican criminal outfit need to prove their traitorous lack of ability to govern. I do not accept that both parties are to blame, that is the tom brokaws of the world firmly planting their lips on the pipe of fence sitting. Obstructionism is the repuglican clarion call and coded racism is the mantra of the southern body politik. Enough is enough, a low information populace allows for these lies put forth by these racists to foment and repeated enough are self perpetuating and believed. Reid has allowed more filibusters than in all of American history and in spite of this continues to cotton to these festering sores representing themselves as U.S.senators, who do not mirror the needs of the citizenry but serve a corrupt master whose interests are to take it all to feed the beast. I’ve had it.