Mr. Smith Retreats into the Cloture

It was never my intention to venture forth into the current Supreme Court debate because I hold positions that are almost impossible to reconcile.

However, I have read too many Facebook posts in the days since Judge Neil M. Gorsuch’s name has been put forward for the job of Associate Justice of the Supreme Court of the United States that are so incorrect they boarder on hysteria. 

The background of the histrionics I believe to be two-fold. 

First, the election of Mr.  Trump as President of the United States.  This was a shock to the system from which one might recover were it not for the Tweets that force us to conclude with the editorial board of The Los Angeles Times:

What is most worrisome about Trump is Trump himself. He is a man so unpredictable, so reckless, so petulant, so full of blind self-regard, so untethered to reality that it is impossible to know where his presidency will lead or how much damage he will do to our nation.1

Gorsuch suffers from guilt by association and is being punished by how unfairly the Republicans treated Judge Merrick B. Garland, a superbly qualified candidate who happened to nominated in the last year of the Obama presidency.

I firmly believe that elections have consequences from the first day to the very last and therefore Judge Garland should have not only been given a hearing but should have been confirmed.  It is not just the presidents  prerogative it is his or her (someday?)  duty to nominate judges taking only the  advice of the Senate into consideration.

The second reaction seems to be based on the belief that the so-called cloture rule has been around since the days of the Founding Fathers.  It hasn’t.  It is sometimes used interchangeably with the word filibuster - as in - “We are going to filibuster this nomination.”  That is not correct either.

“The term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.  It offers the right to any senator to speak for as long as necessary on any issue.”  Think "Mr.  Smith Goes to Washington."

“Three quarters of a century later, in 1917, senators adopted a rule (Rule 22), at the urging of President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as "cloture." 2

In 1975, imposing cloture was made easier by requiring a vote of three-fifths of the entire Senate, a change the importance that derived from what Majority Leader Mike Mansfield, D-Mont., did in 1970: He created the “two-track” system whereby the Senate, by unanimous consent or the consent of the minority leader, can set aside a filibustered bill and move on to other matters. Hitherto, filibustering senators had to hold the floor, testing their stamina and inconveniencing everyone else to encourage the majority to compromise. In the 52 years after 1917, there were only 58 cloture motions filed; in the 46 years since 1970 there have been 1,700.  3 

To stop the ease of Parliamentary obstruction on both sides I propose we let Mr.  Smith out of the Cloture.

If you want to Filibuster a bill you have to do it the old fashioned way - by speaking at length for hours on end.

Senator Jeff Merkley, Democrat of Oregon, recently held forth on the Senate floor for more than 15 hours in protest of the nomination of Judge Neil M. Gorsuch to the Supreme Court. 

New Jersey Sens. Cory Booker and Robert Menendez in June of 2015,   spoke as part of a filibuster on the Senate floor to get the U.S. Senate to address the issue of gun violence.

In 2013 Senator Rand Paul, fueled only by water and Snickers bars, spoke for 14 hours against the National Security Administrations blanket collection of data on American citizens.

And who could forget Senator Ted Cruz’s 21 hour filibuster in 2013 against Obamacare where he read from Dr.  Suess and made references to Star Wars. 

A filibuster can also be ended by nature’s call forcing to Senator Paul to conclude his with these words: ““I would try to go another 12 hours and try to break Strom Thurmond’s record, but there are some limits to filibustering and I am going to have to go take care of one of those here.”4

A real filibuster would test not only the metal and bladder control of the opponents but their commitment as well.

Then there is this arcane but helpful rule that “simply requires the Senate to remain in the same legislative day until the filibustering members have exhausted their ability to speak on the nominee in question. This is the point at which those members who are committed to blocking that nominee’s confirmation have given the two floor speeches allotted to them under Rule XIX.” 5

Think of how much time 49 senators who were really committed to a cause could take up.  Think of how much commitment it would take for a senator to stand up and speak instead of hiding behind a procedural vote.  Think about it and forget it.

The filibuster would always be an option on any bill and any nomination at anytime.  But now it would require a courage that congress has rarely shown.  It would require the courage to stand for something.  It would require belief in a cause so great that the believer would have to risk their personal political future by holding up the business of the senate until they ran out of gas.  It would require putting a name on the impasse.   It would require a measure of bravery and, therefore, it won’t happen.

Mr.  Smith, wherever you are, come out of your cloture.

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1. "Our Dishonest President," Los Angeles Times, April 2, 2017, accessed April 3, 2017, http://www.latimes.com/projects/la-ed-our-dishonest-president/

2. "Fillabuster and Cloture." United States Senate. Accessed April 3, 2017. https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.html

3   George F.  Will. "Busting Up the Fillibuster." Pittsburgh Post-Gazette, March 30, 2017.  Accessed  April 3, 2017. http://www.post-gazette.com/opinion/Op-Ed/2017/03/31/George-F-Will-Busting-up-the-filibuster/stories/201703310169?pgpageversion=pgevoke.

4. Philip Ewing,  "Rand Paul pulls plug on nearly 13-hour filibuster." Politico. June 3, 1913. Accessed April 6, 2017. http://www.politico.com/story/2013/03/rand-paul-filibuster-john-brennan-cia-nominee-088507.

5.   James  Walner and Ed Corrigan. "A Rules-Based Strategy for Overcoming Minority Obstruction of a Supreme Court Nomination." The Heritage Foundation. January 23, 2017. Accessed April 6, 2017. http://www.heritage.org/political-process/report/rules-based-strategy-overcoming-minority-obstruction-supreme-court.