Holding Up Koh and Johnsen
Harold Koh
Marc Ambinder reports that there will be no recess appointments for Dawn Johnsen or Harold Koh:
The true culprits, though, are Republicans, who refuse to allow the Democratic majority to pass the nominees through the Senate by unanimous consent, which would require 50 votes. Non-unanimous consent implies a full debate, which Republicans intend to use to reduce the policy-making energy of the Democratic majority. If the Democrats bring a controversial nominee to the floor, Republicans will filibuster, knowing that there aren’t 60 aye votes. That would eat up precious legislative time.
I continue to be a little bit astonished by how little attention the political establishment is giving to the implications of the routinization of a 60-vote supermajority requirement for all Senate business. This is a very new “tradition” in American governance, it goes against everyone’s common understanding of how democratic procedures are supposed to work, and there’s very little reason to believe that the results will be beneficial in the long run. The fact that the Democrats currently hold 58-59 Senate seats is, I think, to some extent clouding people’s thinking about this. It’s quite rare for either party to have a majority that large. And the implication of the currently evolving norm is that a new president with a 54 or 55 copartisans in the Senate could find himself completely unable to confirm vast numbers of subcabinet nominees, rendering the country essentially ungovernable.
Meanwhile, the administration and the Senate leadership seems to be shockingly ineffective in bringing attention to this. Consider especially the case of Johnsen, who’s apparently being filibustered on the grounds that she’s pro-choice. How is it that Susan Collins and Olympia Snowe, both pro-choice Senators from a pro-choice state that voted for the Democratic Presidential nominee in 1992, 1996, 2000, 2004, and 2008 feel they can participate in this obstruction with impunity?
48 Responses to “Holding Up Koh and Johnsen”
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June 18th, 2009 at 11:33 am
Matt that is a really important topic. Why not pitch and oped to the Post or Times? You should consider it.
June 18th, 2009 at 11:34 am
The Village is wired for Republicans.
June 18th, 2009 at 11:36 am
Not as tough as the Steelers, indeed. Mike Tomlin would have gotten both Johnsen and Koh confirmed months ago.
June 18th, 2009 at 11:37 am
I agree 100% with the lack of publicity being the prime culprit here. Because of the Dawn Johnsen thing, I was anticipating a horrific struggle of Sotomayor for similar reasons… but I hadn’t counted on what a difference having the spotlight on you makes for Senators. I think the only reason they’re getting away with this is that nobody is paying attention.
June 18th, 2009 at 11:39 am
I ditto the recommendation at #1, Matt — write an op-ed, or get a historian friend to do so. This business about the filibuster is an “emperor has no clothes” situation — everyone is just choosing to look the other way. It could be made into a topic for the villagers to babble about, but someone is going to have to push them harder, in a way they recognize — which means on ground up tree.
June 18th, 2009 at 11:40 am
But here’s a simpler question: why isn’t JMM pushing this meme?
June 18th, 2009 at 11:42 am
They’re only allowed 6 posts per day, with one of them being a round up of yesterday’s news.
June 18th, 2009 at 11:43 am
LOL. The real reason it doesn’t get press is because Democrats were the instigators of this practice. Like Pelosi and torture, this will be kept under wraps by the loyal media.
So go ahead, be my guest. Shout it to the roof tops and hamstring your own party in the process.
Keep up the good work.
June 18th, 2009 at 11:46 am
Matt did a somewhat longer take on this here:
http://www.theatlantic.com/doc/200812u/filibuster
Although I agree that it would be a good subject for an op-ed w/ the Koh stuff..
On a completely unrelated subject, Matt, what’s up with this new style of photo placement? You’ve got a thumbnail of Koh right-justified but with no text wrap. IMHO this doesn’t look good.
June 18th, 2009 at 11:55 am
the administration and the Senate leadership seems to be shockingly ineffective
That’s because Senate Majority Leader Reid is a conservative, who is more likely to agree with the Republicans than with the more liberal wing of his own party.
June 18th, 2009 at 11:57 am
Hi, Matt:
Great Post! This is why I read you–a continued, reasoned call to, well, reason on the part of our people in Wash, D. C. And why have I never heard strong public complaints by Mr. Obama and his people?
June 18th, 2009 at 12:02 pm
“I continue to be a little bit astonished by how little attention the political establishment is giving to the implications of the routinization of a 60-vote supermajority requirement for all Senate business. This is a very new “tradition” in American governance, it goes against everyone’s common understanding of how democratic procedures are supposed to work, and there’s very little reason to believe that the results will be beneficial in the long run.”
Force a change the Senate rules. Do it now.
51 votes rules the Senate. It’s really that simple.
No one wants to do it because it’ll be messy and there will be political fallout. But the real political fallout to be worried about by Obama and Congressional Dems is the prospect that the government won’t be able to effectively manage the economy and healthcare.
Good government is aligned with good politics. Make the government work.
June 18th, 2009 at 12:02 pm
Plus there’s the anonymous holds. For instance, the Census Bureau continues to be without a director, one month after his confirmation hearing and two and a half months after his nomination, because an unknown GOP Senator placed an anonymous hold on his confirmation.
I’d like someone to ask that fatuous old fart David Broder just why Dems should attempt to be ‘bipartisan’ and cooperate with a party that’s throwing sand in the gears of the routine business of government just for the sheer hell of it.
June 18th, 2009 at 12:06 pm
That said, Obama should make full use of his power to make recess appointments. This is politics, not beanbag, and it’s damned important to fill all those positions so that his Administration can do the work they’re there to do. If the GOP’s going to use every Senate rule to try to hold up his appointments, there’s no reason why Obama shouldn’t use his Constitutional power to make recess appointments as a means of overriding their foolishness.
June 18th, 2009 at 12:07 pm
When is Dick Durbin getting moved up to Senate Majority Leader again? Can it be yesterday?
June 18th, 2009 at 12:16 pm
there’s no reason why Obama shouldn’t use his Constitutional power to make recess appointments as a means of overriding their foolishness.
Except that the recess appointments run out at the end of every Congress and carry an air of controversy. Flash to 2011: Why, how can the president nominate Harold Koh to the Supreme Court when he was so controversial that he had to be given a recess appointment? He couldn’t even be confirmed in a Senate with 60 Democrats? He must be a crazy person. David Broder is very concerned.
The Senate’s powers are being hideously abused and you can’t just knuckle under to that.
June 18th, 2009 at 12:17 pm
“I’d like someone to ask that fatuous old fart David Broder just why Dems should attempt to be ‘bipartisan’ and cooperate with a party that’s throwing sand in the gears of the routine business of government just for the sheer hell of it.”
Broder is an idiot, but he is the wrong target for blame.
There are 58 1/2 Democratic Senators. Only 50 are necessary to change the rules Robert Byrd enacted in the mid-1970’s, (though it’d be nice to have 51 for better optics.)
The target for blame is the administration and Democratic Senate high command that aren’t willing to go through the fight necessary to reform Byrd’s rules.
We’ve got the votes. We just need to find the will.
We can’t stop Broder from being an idiot, but we do have the ability to make the Senate work in the manner envisioned by the Constitution.
It’d be good policy and and it’d be good politics, since we could deliver on our agenda, which would be nice to run on in ‘10 and ‘12.
June 18th, 2009 at 12:18 pm
@low-tech cyclist – No, Obama should not make recess appointments. Bush’s were unconstitutional and Obama’s would be as well. But the Senate never contested them under Bush, so they looked legit. Prior violations of the law do not justify present violations.
Also, agree this needs some serious press. At the very least, we need some serious pressure on Reid to call them out. I think all we have to do is have one real filibuster and the public would recognize how stupid these holds are.
June 18th, 2009 at 12:30 pm
Astonishing indeed, Matt, despite — and because of — how this has been going on for months now. Isn’t it bizarre to think it’s June 18 and the Senate has not yet allowed the White House to fill important staff positions?
As for formal articles/op-eds, Ezra Klein also wrote about this in a Prospect article a few months ago. Keep it up, guys.
As for Reid, seems these days he takes more time to cry about “my friend” John Ensign than put the screws to the Republicans.
And at risk of making light of this serious issue (and good blog post), I have to ask, how can anyone stall the confirmation of such a cheerful, debonair, carefree dude like Harold Koh? Just look at that picture!
June 18th, 2009 at 12:40 pm
Because Republicans are much better at one-line zingers and nasty headline quotes than the Dems.
This is a clear lack of ability to put forth a message and control the agenda by the Dems.
Even with a near 60% majority in the Senate, they cannot get their agenda completed.
PATHETIC.
June 18th, 2009 at 12:42 pm
Isn’t it obvious that Johnsen and Koh were only “appointed” to attract some costless cheering from the left? The administration hasn’t lifted a finger to get either of them confirmed, and I would bet that in a couple of months they will be encouraged to “withdraw” their “appointments” to much hand-wringing about partisanship-run-amok.
June 18th, 2009 at 12:48 pm
Only 50 are necessary to change the rules
A simple majority of Senators present and voting can change the rules; a two-thirds majority is required to end debate on a measure to change the rules. The “nuclear option” of essentially changing the rules on a point of order would have been a bad idea if carried out by a Republican majority and would be equally bad if done by the Democratic majority.
June 18th, 2009 at 12:58 pm
Isn’t it obvious that Johnsen and Koh were only “appointed” to attract some costless cheering from the left?
No, that’s moronic. Koh didn’t take a leave from Yale Law to give Obama political cover. These, and the appointment of Steve Harrison, were supposed to be relatively clean confirmations, and the administration got frazzled by the resilience of conservative opposition.
June 18th, 2009 at 1:02 pm
I agree with Herschel at 22. The nuclear option was quite clearly an attempt to change the Senate rules by breaking them. In typically hypocritical Rethug fashion, it was simply cheating. Unfortunately, it probably would have worked since it is almost certain that the federal courts would have declined to adjudicate this matter as a “political question.” As much as I would like to eliminate the now ridiculously abused filibuster, I cannot condone doing so by breaking the rules. I do not want to turn the Democrats into a mirror image of the Rethugs. I accept that this may be a quaint position these days, and I concede that it is aking to tying one or both hands behind your back when dealing with the Rethug echo chamber, but there it is. (Of course, this is a moot question. Assuming that there would be 50 Democratic votes in favor of eliminating the filibuster on the merits, which I doubt, they lack the balls to even mention such a possibility out loud let alone atempt it.)
June 18th, 2009 at 1:14 pm
“I agree with Herschel at 22. The nuclear option was quite clearly an attempt to change the Senate rules by breaking them. In typically hypocritical Rethug fashion, it was simply cheating.”
It wasn’t cheating. The Constitution is quite clear that the Senate can set its own rules.
And 51 votes rules the Senate.
A thirty year old rule that prevents a majority from changing the rules is quite obviously invalid if challenged by a majority of Senators. The Constitution is quite clear that we have federal elections every two years. The currently serving Senators are not bound against their majority will by rules adopted by a Congress serving thirty years ago.
And all of this was just as true in 2006 as it is now. This isn’t a partisan matter. This is a matter of the Senate working as the Founders intended. Majority rules except where supermajorities are specified in the Constitution.
June 18th, 2009 at 1:14 pm
Koh didn’t take a leave from Yale Law to give Obama political cover.
Ah, if you’re going to stage a convincing “appointment” it helps to have the appointee believe the appointment is legit. Do you really think Koh would have gone along with a sham? Of course not: he’s not an Obama stooge, so the whole thing screws him more than anyone.
But of course that’s an added benefit to the administration, since Harold Koh as progressive-martyr-to-Republican-intransigence is a much, much more powerful tool in the hands of Rahm Emmanuel than Harold Koh as aggressive, American-policy-questioning lawyer in the State Department. If you’re looking for precedents for this kind of thing, I urge you to google “Miguel Estrada.”
June 18th, 2009 at 1:19 pm
A simple majority of Senators present and voting can change the rules; a two-thirds majority is required to end debate on a measure to change the rules.
I love this, especially the second part of the sentence. Legislative choke points, whether during liberal or conservative majorities = a Good Thing.
More legislative choke points, whether during liberal or conservative majorities = more Good Things.
June 18th, 2009 at 1:21 pm
The Labour Party would never even gotten close to passing their 1945-1951 socialism programme, and destroying Britain’s competitiveness, had there been as many choke points in Parliament.
June 18th, 2009 at 1:23 pm
“A simple majority of Senators present and voting can change the rules; a two-thirds majority is required to end debate on a measure to change the rules. The “nuclear option” of essentially changing the rules on a point of order would have been a bad idea if carried out by a Republican majority and would be equally bad if done by the Democratic majority.”
Requiring a supermajority not envisioned in the Constitution to pass any bill or confirm any appointment is a faaaaaaar worse idea than changing the rules via a perfectly valid parliamentary tactic.
A supermajority bound house of Congress is highly inimical to a functioning federal government. And a nonfunctional federal government is one helluva bad idea.
Why anyone would think a majority of a Congress from the mid-1970’s could bind a majority of the current Congress from taking votes is truly beyond me.
June 18th, 2009 at 1:24 pm
NYC_Charles: No, Obama should not make recess appointments. Bush’s were unconstitutional and Obama’s would be as well.
Thanks for playing, but the Presidential power to make recess appointments is right there in the Constitution. Last paragraph of Article II, Section 2.
Dave Weigel: Except that the recess appointments run out at the end of every Congress and carry an air of controversy. Flash to 2011: Why, how can the president nominate Harold Koh to the Supreme Court when he was so controversial that he had to be given a recess appointment?
They carry an air of controversy to the op-ed columnists and Sunday morning talking heads. Anybody think Obama’s going to lose 5000 votes in Indiana in 2012 because he made some recess appointments in 2009?
I suppose it might be a problem if Obama had his heart absolutely set on Harold Koh as his next Supreme Court nominee, but I suspect that’s the extent of it.
I agree that this is an abuse of Senate prerogatives that can’t be taken lying down, but this IS how one fights back. And sure, these appointments would expire at the end of 2010, but barring major screwups on the part of the Obama Administration, the Dems will probably pick up a few Senate seats in 2010, which will make it a lot harder for the GOP to play this game, even with the aid of the occasional Ben Nelson, Arlen Specter, or Joe Lieberman. (Lieberman will be on his best behavior in the next Congress anyway, since he comes up for re-election in 2012.) And Obama needs his team in place to minimize the chance of major screwups.
June 18th, 2009 at 1:32 pm
“Legislative choke points, whether during liberal or conservative majorities = a Good Thing.”
We’ve got abundant legislative choke points with a majority ruled Senate, Myles SG.
The Founders were big on checks and balances, and they put tons of them into the Constitution. But neither the Founders nor any amendment thought the Byrd rules were a desirable check and balance.
The system as written in the Constitution has a pretty nice architecture. We ought to be using that architecture.
You still need to get things passed with a majority of two houses of Congress (with one house having staggered elections), the signature of the President, and the acceptance of the Supreme Court. Like I said, there are still abundant legislative choke points.
June 18th, 2009 at 1:33 pm
Speaking of choke points, is Miley Foppington wearing his old school tie today?
June 18th, 2009 at 1:38 pm
Harry Reid is an idiot.
Dick Lugar has already said that he supports Dawn Johnson. Not only will he not be in the filibuster, but he will vote for her confirmation. However, for some reason, spineless Harry Reid doesn’t bring her up for a vote.
Harry Reid is a chicken with his head cut off. Get him out.
Also, some dummy republican wrote about how senate dems started the filibustering process. This is true. It is also true that Republicans have used it exponentially more than the dems did.
June 18th, 2009 at 2:13 pm
Matt, what will it take to get you to advocate open rebellion/civil unrest/protest/strikes/whatever to get the attention of the motherfuckers who call themselves Dems but are really just less-than Repulicans and all part of the same government/corporate structure which has subverted democracy in this pitiful country?
June 18th, 2009 at 2:17 pm
@low-tech cyclist -
Recess appointments, when used appropriately, are constitutional. They are meant to allow the government to function when Congress is not in session (i.e., away for months at a time). That’s not how Bush used them – he used them to circumvent the Senate approval process entirely and he used them when Congress happened to be away for a short break (like a long weekend) rather than when Congress had recessed entirely. The former circumvents the advise and consent requirements, while the latter merely allows the government to function until advice and consent is possible.
To take two examples – in 1795, John Jay resign as Chief Justice while Congress was away for a months-long break. Washington appointed John Rutledge to the position, but he was rejected by the Senate when they eventually came back to town. On the other hand, in 2005, Bush nominated John Bolton for UN Ambassador while the Senate was in session. After it became clear he would not be approved by the Senate, Bush appointed him when the Senate was out of town.
This is pretty complicated issue, so I apologize if I made a flat statement of its constitutionality earlier without fully explaining. But I do know what I’m talking about here, your “thanks for playing” notwithstanding.
June 18th, 2009 at 3:03 pm
Speaking of choke points, is Miley Foppington wearing his old school tie today?
Next week, at dinner following the old boy golf tournament. And it’s perfectly comfortable; it’s made by Vineyard Vines.
June 18th, 2009 at 3:06 pm
(For charity)
June 18th, 2009 at 4:06 pm
A thirty year old rule that prevents a majority from changing the rules is quite obviously invalid if challenged by a majority of Senators.
You seem to be under the impression that before the 1975 rules change it was easier to change the rules, and easier to end a filibuster. Such was not the case.The two-thirds requirement to end debate on a measure to change the rules of the Senate dates from 1917, when cloture was first introduced, and applied to debate on any matter before the Senate. Before that, there was no way to force an end to debate on any matter before the Senate. The overall cloture rule was relaxed in 1975 to make it easier to overcome a filibuster, except for rules changes, which are still bound by the 1917 requirement for cloture.
[I said:] A simple majority of Senators present and voting can change the rules; a two-thirds majority is required to end debate on a measure to change the rules.
[Myles SG said:] I love this, especially the second part of the sentence. Legislative choke points, whether during liberal or conservative majorities = a Good Thing.
I never said anything as to the good-thinginess of the cloture rule. I stated it; I did not endorse it.
June 18th, 2009 at 5:36 pm
“You seem to be under the impression that before the 1975 rules change it was easier to change the rules, and easier to end a filibuster. Such was not the case.The two-thirds requirement to end debate on a measure to change the rules of the Senate dates from 1917, when cloture was first introduced, and applied to debate on any matter before the Senate.”
I’m well aware of the history of the cloture rule, Herschel.
And you ought to review the history of what happened in 1917:
A majority of the Senate threatened to end all “Senatorial privilege” (standing rules), and the cloture rules were instituted as a compromise. The folks in 1917 who gave up “unlimited debate” and assented to the cloture rules understood full well that a majority of the Senate could change the rules – indeed that’s the only reason why they gave up “unlimited debate”.
Similarly, if the minority in the current Senate were willing to further circumscribe “Senatorial privilege” in ways that allow bills and appointments with majority support to come to a vote, I’m sure the majority would be willing to come to a compromise that allowed an obstructionist Senator or faction to delay things for some set period.
But no one should be confused about whether or not a majority of the Senate has the parliamentary right to change the rules if they choose. They most certainly do have that right.
And there is nothing unseemly or improper about exercising that right. The Byrd rules are not set in stone – they have no special grip on the present. And we live in an age where a functioning government seems as if it would be quite useful.
June 18th, 2009 at 5:45 pm
“And you ought to review the history of what happened in 1917″
For that matter, you ought to review the history of what happened in the 70’s. Bob Byrd jammed the rule changes easing cloture down the throat of the Senate because he had majority support to go change the rules.
You only get compromises on “Senatorial privilege” when you have a majority to go change the rules.
June 18th, 2009 at 6:23 pm
Excessive choking has a nasty side-effect called “death”.
Measures that protect minority opinion are a good thing. That is not what’s going on here. What we have now is a minority that believes only it has the right to govern. The cloture rule is founded upon the minority having at least a modicum of decency. This Republican senate does not have it.
June 18th, 2009 at 6:30 pm
It’s odd. I remember a hell of a lot of press coverage of Democrats using this tactic narrowly, and being raked over the coals for it.
A couple years back, I put a comment up on this topic in which I analysed WaPo and NYT coverage of filibusters. Universally, Democratic use was referred to as filibustering, and Republican use was referred to as “60 votes needed for passage”.
I had links to google searches of “filibuster” and “60 votes needed”. You culd go right down the list, and every damn one was consistent. I like to take credit for the Post ending that practice shortly after I made it public, but their coverage on this topic still overwhelmingly favors Republicans.
June 18th, 2009 at 8:04 pm
I’m well aware of the history of the cloture rule, Herschel.
Then you shouldn’t refer to a 90-year-old arrangement as a 30-year-old rule.
June 18th, 2009 at 11:11 pm
Is it possible that He-Man Harry’s whip count (with Lugar) is one short and he is waiting on Franken? I doubt he really cares and if that is the excuse he is giving Obama, then I bet the WH would be willing to wait the extra 1 month and change. Not pretty, but better than a recess appointment…
June 19th, 2009 at 6:46 am
“Then you shouldn’t refer to a 90-year-old arrangement as a 30-year-old rule.”
The rules we are currently operating under are indeed 30 year old rules. The rules of 1917 were overturned.
Bob Byrd is about to die, and it’s time for his rules to die as well.
June 19th, 2009 at 7:43 am
“How is it that Susan Collins and Olympia Snowe, both pro-choice Senators from a pro-choice state that voted for the Democratic Presidential nominee in 1992, 1996, 2000, 2004, and 2008 feel they can participate in this obstruction with impunity?”
Because they can. They are my senators. Olympia Snowe especially is a goddess up here, and Susan Collins just beat popular 1st district Congressman Tom Allen with 65% of the vote. They are accountable to no one at this point, because both would be elected with overwhelming majorities if they were caught bedding Bill Clinton in a meth lab.
June 19th, 2009 at 8:07 am
Here’s a little thought experiment for you, Herschel.
In the 1930’s the Democrats had a 3/4 majority in the Senate.
Q: Could that Senate have passed a rule saying that no bill could come for a vote without the approval of the Senate Democratic leader?
A: Yes. Perfectly legal and constitutional.
Q: Could that Senate have passed a rule saying that only a 3/4 majority could change that particular rule?
A: Yes. Perfectly legal and constitutional.
Q: If the Republicans gained a majority in a future Senate, could they overturn those rules with a simple majority despite the fact that the rules said only a 3/4 majority could change the rules?
A: Quite obviously, yes. Perfectly legal and constitutional.
A majority rules the Senate. A majority can always change the rules. The entire edifice of “standing rules” and “Senatorial privilege” exists only with the sufferance of the current Senate majority.
Centuries of parliamentary rules and the wording of the U.S. Constitution are quite clear that a majority of the Senate can change the Senate rules at any time they choose.
The “compromise” rule changes of the 1910’s and 1970’s were both face saving exercises brought on by the fact that a simple majority of the Senate was ready to more drastically change the rules unilaterally. Bob Byrd was quite explicit in his threats during the 1970’s rule changes, and the legislative history is easy to review.
June 20th, 2009 at 1:00 pm
“Rendering the country essentially ungovernable” is the whole point. Just look at California: the far right doesn’t have the support to gain a majority, so they impose a 2/3rds rule to make themselves necessary for anything to pass, then close ranks and refuse to vote for anything that doesn’t come from them.
The goal of this new idea that 60 votes are necessary before anything gets through the Senate has got the same idea behind it, precisely because supermajorities are so rare, and because enough Democrats always go along with Republicans to get them above the 60 vote requirement to close debate. It’s designed to thwart the passage of any liberal/progressive legislation, while giving a bipartisan, minority-approved facade to the routine rubber stamping of conservative legislation.