Obama, Alito, and the Filibuster

Michael Kinsley says if the GOP wants to filibuster, they ought to do it "the old fashioned way"

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Followers of the recent health care debate with short memories might well have thought that it requires 60 votes to pass any non-financial law in the Senate. That's why the loss of their 60th vote, with Republican Scott Brown's surprise victory in the Massachusetts special election to replace Ted Kennedy, was so devastating to the Democrats. Only by arguably misusing a sneaky maneuver called "reconciliation" (which is intended for budget bills) were they able to pass their reform. Or at least it was widely considered to be sneaky. By contrast the right of Republicans to insist on a 60-vote majority was considered playing tough, but not dirty.

As recently as 2006, things were different. Or maybe only the parties were different. When Democrats briefly filibustered President George W. Bush's Supreme Court nominee, Samuel Alito, the legitimacy of using a filibuster to require 60 votes instead of a simple 51-vote majority was widely debated. Queasiness about using such a sneaky trick, with its tawdry history as the way Southerners prevented a Civil Rights bill for several generations, may well have scared away some Democrats. At any rate, a 55-vote Republican majority was considered more than enough to stop it. This is in contrast to the 59-vote Democratic majority that is now considered insufficient.

People are focusing on the fact that back in 2006, Senator Barack Obama supported the filibuster. He did, but he also expressed ambivalence, which some say is typical. In fact, he was so ambivalent that an AP report on a TV interview where he discussed his views was headlined, "Sen. Obama Criticizes Filibuster Tactic." More to the point, though, is that just four years ago the filibuster itself was considered to be a bit sneaky, which is why 72 senators, including some Democrats, voted in favor of cloture, or cutting off debate, on Alito after just a couple of days.

In 2006, Democrats were worried that if they were forced to bring all Senate proceedings to a halt and keep talking for 24 hours a day, which is how filibusters used to work, they would look foolish and probably one of them would say something stupid at 4 a.m. one day, which Republicans could use against them. Today, by contrast, filibusters work like chess games where you look eight moves ahead, perceive and declare the inevitable winner, and call it quits. There was no talk, during the health care debate, of actually making Republicans conduct a filibuster. No longer cricket, apparently.

Senate Republicans are saying that they won't decide about a filibuster until they know who the nominee will be. This civilized approach is in contrast to health care, where Republicans decided that adamant opposition was the right response before anyone knew what they were responding to. If they try to filibuster Obama's Court nominee, they should at least be forced to do it the old-fashioned way.

This article is from the archive of our partner The Wire.