Flip-Flop-Flip: NY Times Opposes Filibusters... When They Frustrate Democratic Presidents

"Look, folks, we love the filibuster when Democrats use it against Republicans, but really hate it when Republicans use it against Democrats."

If the New York Times editorial board were completely honest, that's exactly what they'd admit in print to their readers. Instead the Gray Lady keeps shifting her point of view on the parliamentary maneuver depending on whose ox is gored. On January 1, 1995, the Times gave the incoming Republican majority a new year's resolution: substantially trim back the filibuster to fall in line with the proposal of liberal Iowa Democrat Tom Harkin (emphases mine):


The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him.

[...]

Mr. Harkin says reasonably that there must come a point in the process where the majority rules. This may not sit well with some of his Democratic colleagues. They are now perfectly positioned to exact revenge by frustrating the Republican agenda as efficiently as Republicans frustrated Democrats in 1994.

Admirably, Mr. Harkin says he does not want to do that. He proposes to change the rules so that if a vote for cloture fails to attract the necessary 60 votes, the number of votes needed to close off debate would be reduced by three in each subsequent vote. By the time the measure came to a fourth vote -- with votes occurring no more frequently than every second day -- cloture could be invoked with only a simple majority. Under the Harkin plan, minority members who feel passionately about a given measure could still hold it up, but not indefinitely.

Another set of reforms, more incremental but also useful, is proposed by George Mitchell, who is retiring as the Democratic majority leader. He wants to eat away at some of the more annoying kinds of brakes that can be applied to a measure along its legislative journey.

[...]

The Harkin plan, along with some of Mr. Mitchell's proposals, would go a long way toward making the Senate a more productive place to conduct the nation's business. Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose.

That editorial came just days before the seating of the 104th Congress, which was arguably the best and most proper time to actually amend the rules of debate for the upper legislative chamber. Essentially the Times called on both sides to agree to some rule changes before kickoff, but there's no doubt for whom the paper was rooting from the sidelines.

Fast forward ten years to a Republican presidency and a GOP-controlled Senate, and, well, the Times had a dramatic change of heart, insisting it had seen the error of its ways and was convinced that the filibuster was fundamental to the success of the Republic, now more than ever.

Below you'll find their March 29, 2005 editorial reprinted in full. Please note the Times's impassioned, philosophical defense of the prerogatives of the minority in a representative republic, as well as language suggesting that President Bush simply pick more acceptable judicial nominees (emphasis mine):

The Senate will return from Easter vacation with nuclear options on its mind. Republicans seem determined to change the rules so Democrats will no longer be able to stop judicial nominations with the threat of a filibuster. If they're acting out of frustration, it's understandable. In the past we've been frustrated when legislators tried to stop important bills from passing by resorting to the same tactic. The filibuster, which allows 41 senators to delay action indefinitely, is a rough instrument that should be used with caution. But its existence goes to the center of the peculiar but effective form of government America cherishes.

Since George W. Bush first became president, Democratic senators have used the filibuster 10 times to block the confirmation of nominees for federal court judgeships. They chose their targets cautiously - more than 200 other nominees were confirmed, some of them men and women whose records were extremely conservative. But surely it is not a matter of life and death to the White House if, for instance, a former lobbyist for mining interests with a reputation for anti-environmentalism cannot get a seat on the federal bench out West. The president might have taken this opportunity to fulfill his long-deferred promise to be a uniter, and replaced the rejected nominees with other candidates from the very large pool of competent people available. Instead, Mr. Bush has drawn a line in the sand and resubmitted some of the same unworthy nominees. If the Democrats resist, the Republican leaders have vowed to change the rules and eliminate the right of filibuster for judicial nominations.

They may not have the votes to make this happen. Many of the wisest Republicans are well aware that their leaders are playing a dangerous game and that they are doing it for frivolous reasons. The judicial nominees can easily be replaced. But the sense that there are certain rules that all must play by, whether to their advantage or not, is something that cannot be restored. Senators need only to look at the House to see what politics looks like when the only law is to win at any cost.

The Senate, of all places, should be sensitive to the fact that this large and diverse country has never believed in government by an unrestrained majority rule. Its composition is a repudiation of the very idea that the largest number of votes always wins out. The members from places like Rhode Island, Maine or Iowa know that their constituents are given a far larger say than people from New York simply by virtue of the fact that each state has two votes, regardless of population. Indeed, as a recent New Yorker article pointed out, the Democratic senators who have blocked that handful of judicial nominees actually represent substantially more Americans than the Republican majority that wants to see them passed.

While the filibuster has not traditionally been used to stop judicial confirmations, it seems to us this is a matter in which it's most important that a large minority of senators has a limited right of veto. Once confirmed, judges can serve for life and will remain on the bench long after Mr. Bush leaves the White House. And there are few responsibilities given to the executive and the legislature that are more important than choosing the members of the third co-equal branch of government. The Senate has an obligation to do everything in its power to ensure the integrity of the process.

A decade ago, this page expressed support for tactics that would have gone even further than the "nuclear option" in eliminating the power of the filibuster. At the time, we had vivid memories of the difficulty that Senate Republicans had given much of Bill Clinton's early agenda. But we were still wrong. To see the filibuster fully, it's obviously a good idea to have to live on both sides of it. We hope acknowledging our own error may remind some wavering Republican senators that someday they, too, will be on the other side and in need of all the protections the Senate rules can provide.

Fast forward again to 2013 and the Gray Lady's reaction to Democrats going nuclear on the filibuster as it relates to presidential executive and judicial picks -- except for Supreme Court nominations. In their Nov. 22 editorial, "Democracy Returns to the Senate," you'll notice the Times offers a full-throated defense of Sen. Harry Reid and Senate Democrats, expressing no reservations about either the policy nor the timing and manner in which Democrats scrapped the 60-vote cloture rule to end debate on nominations. And all that talk about the "integrity" of the confirmation process? Forget about it! (emphases mine):

For five years, Senate Republicans have refused to allow confirmation votes on dozens of perfectly qualified candidates nominated by President Obama for government positions. They tried to nullify entire federal agencies by denying them leaders. They abused Senate rules past the point of tolerance or responsibility. And so they were left enraged and threatening revenge on Thursday when a majority did the only logical thing and stripped away their power to block the president’s nominees.

In a 52-to-48 vote that substantially altered the balance of power in Washington, the Senate changed its most infuriating rule and effectively ended the filibuster on executive and judicial appointments. From now on, if any senator tries to filibuster a presidential nominee, that filibuster can be stopped with a simple majority, not the 60-vote requirement of the past. That means a return to the democratic process of giving nominees an up-or-down vote, allowing them to be either confirmed or rejected by a simple majority.

The only exceptions are nominations to the Supreme Court, for which a filibuster would still be allowed. But now that the Senate has begun to tear down undemocratic procedures, the precedent set on Thursday will increase the pressure to end those filibusters, too.

This vote was long overdue. “I have waited 18 years for this moment,” said Senator Tom Harkin, Democrat of Iowa.

It would have been unthinkable just a few months ago, when the majority leader, Harry Reid, was still holding out hope for a long-lasting deal with Republicans and insisting that federal judges, because of their lifetime appointments, should still be subject to supermajority thresholds. But Mr. Reid, along with all but three Senate Democrats, was pushed to act by the Republicans’ refusal to allow any appointments to the United States Court of Appeals for the District of Columbia Circuit, just because they wanted to keep a conservative majority on that important court.

That move was as outrageous as the tactic they used earlier this year to try to cripple the National Labor Relations Board and the Consumer Financial Protection Bureau (which they despise) by blocking all appointments to those agencies. That obstruction was removed in July when Mr. Reid threatened to end the filibuster and Republicans backed down. The recent blockade of judges to the D.C. appellate court was the last straw.

Republicans warned that the rule change could haunt the Democrats if they lost the White House and the Senate. But the Constitution gives presidents the right to nominate top officials in their administration and name judges, and it says nothing about the ability of a Senate minority to stop them. (The practice barely existed before the 1970s.) From now on, voters will have to understand that presidents are likely to get their way on nominations if their party controls the Senate.

Given the extreme degree of Republican obstruction during the Obama administration, the Democrats had little choice but to change the filibuster rule. As Mr. Reid noted on the floor, half of all filibusters waged against nominations in Senate history have occurred since Mr. Obama was elected. Twenty of his district court nominees were filibustered; only three such filibusters took place before he took office. There has also been a record-setting amount of delay in approving the president’s choices for cabinet positions and federal agency posts, even when no objections have been raised about a nominee’s qualifications.

The rule change does not end the 60-vote threshold for blocking legislation, which we have argued is worth preserving. But the vote may lead to broader filibuster changes. A proposal by several younger Democratic senators to require “talking filibusters” — forcing objecting lawmakers to stand up at length and make their cases — may well gain steam now, and it could finally spell an end to logjams that have prevented important legislation from reaching votes.

Democrats made the filibuster change with a simple-majority vote, which Republicans insisted was a violation of the rules. There is ample precedent for this kind of change, though it should be used judiciously. Today’s vote was an appropriate use of that power, and it was necessary to turn the Senate back into a functioning legislative body.

You'll notice the Times failed to acknowledge it had pulled a complete 180 from its 2005 position nor that it had far exceeded the outer bounds of its 1995 editorial where it approved Harkin's idea of four successive cloture votes before ending a filibuster.

The Times has every right to its opinion. The Gray Lady, like any woman, has the prerogative of changing her mind. But it's a bit much for the suits at the Times to pretend that principle, not partisan animus, is what motivates the flip-flopping of the editorial board.

Ken Shepherd
Ken Shepherd
Ken Shepherd is the Managing Editor for NewsBusters