"Give Us Barabbas!" and Other Proportional Responses to the Nuclear Option
Sen. John McCain gave an angry speech against the nuclear option citing both Obama and Reid's reversal on the issue. But responses from some of his fellow Republican weren't so proportional.
To wit, Sen. John Thune:
"Senate Democrats are desperate to talk about anything other than the disastrous train wreck of ObamaCare,” Thune said in a statement provided to Breitbart News by his office. “With millions of Americans facing dropped coverage, sticker shock from premium hikes, and the loss of access to their doctor, it’s not surprising that Democrats would want to change the subject away from all of their broken ObamaCare promises. Unfortunately for Americans, they don’t have the luxury of simply changing the subject.”
Sen. Jeff Sessions (again speaking to Breitbart.com):
"Let's be frank. Presidents want to fill the D.C. Circuit Court of Appeals because they think they can shift the balance there and be able to advance their agenda throughout the judicial process because a lot of key cases are filed there, and lobbyists and outside forces that care about judges want the Presidents to put their kind of people in those positions--maybe even their law partner or their friend or their political buddy on that court," he explained. "We have no money in this country to fund a judgeship that is not needed,” he added.
National Review writer Charles W. Cooke, drawing a change in Senate procedure to its natural conclusion:
"Well, how far do you take that?" Cooke pondered aloud. "You could just ignore the House. You could have a military coup, you could have anything at the end of this."
And no list would be complete without Rep. Steve Stockman:
"Give us Barabbas!" MT @WhiteHouse Obama: “If you’ve got a majority of folks who believe in something, then it should be able to pass."-- Rep. Steve Stockman (@SteveWorks4You) November 21, 2013
For those of us heathens not raised in the church, here's a refresher: When Jesus was going to be crucified, Pontius Pilate gave the Roman citizens the option of freeing Jesus Christ and crucifying Barabbas, a criminal, instead. The crowd yelled, "Give us Barabbas!" thus condemning Christ to death. Stockman may actually have a point there—majority rule can lead to bad decisions. That's why I'm sure he'd be more than willing to give up his party's formidable majority in the House.
Correction, November 25, 2013: This post originally misspelled Pontius Pilate's name.
The Nuclear-Option Genie Is Out of the Bottle
Thursday’s vote to restore majority rule in the Senate is politically earth-shaking. The principle that a simple majority of truly determined Senators may properly modify filibuster rules on any day—and not just on one magic day at the beginning of a new congressional term—has now been firmly established in actual Senate practice, and there is no going back. The nuclear-option genie is now out of the bottle.
The filibuster-reform vote applies only to certain nominations—Supreme Court slots are not covered—but Friday (or any day thereafter) the Senate is free to sweep in the Supreme Court confirmation votes, or ordinary legislative votes, or anything else. When the Republicans next control the Senate—and of course one day, they will—they too will be free to insist on simple majority rule. What goes round, comes round.
The current Democratic majority would thus be wise to allow minority Republicans very broad (but not endless) freedom of speech, as a matter of courtesy and comity; everyone should get to speak, and then all should get to vote. If the Dems govern the Senate with a kinder, gentler version of majority rule than does the House, today will rightly be seen by future Americans as one of the great days in the history of the republic.
Oh, and by the way, you heard it here—first!—in Slate: The constitutional theory undergirding today’s vote appeared way back in January 2011, in a piece that I co-wrote with former Sen. Gary Hart. And for a more detailed discussion, see Chapter 9 of my latest book, America’s Unwritten Constitution.
Obama Loved the Filibuster Before He Was Against It
While writing about senators' evolving opinions on the matter, I'd be remiss not to point out Obama's erstwhile support of the filibuster. As a senator in 2005—when Democrats were in the minority—he spoke against dismantling the filibuster. "BREAKING," Chris Hayes tweeted. "Everyone's a hypocrite on process."
Does it matter that Mitch McConnell or Harry Reid or Barack Obama changed their position on the filibuster depending on when it was most beneficial to their party? To answer that, I think you have to ask: is the filibuster quantitatively more expansive today compared to 2005? Obama says yes. His 2005 defense of the filibuster, however, is still worth watching:
President Obama in 2013:
"I realize that neither party has been blameless for these tactics. They've developed over years, and it seems as if they've continually escalated. But today's pattern of obstruction—it just isn't normal. It's not what our founders envisioned. A deliberate and determined effort to obstruct everything, no matter what the merits, just to refight the result of an election is not normal, and for the sake of future generations, we can't let it become normal."
And Senator Obama in 2005:
"If the right of free and open debate is taken away from the minority party, and the millions of Americans who ask us to be their voice, I fear that the partisan atmosphere in Washington will be poisoned to the point where no one will be able to agree on anything."
That hasn't stopped anyone up to now!
Why the Senate Went Nuclear
Without wanting to interrupt my colleague Emma Roller's coverage—or interrupt the short time I've got to hammer out part of a book that has nothing to do with politics—I'd like to explain briefly how the Senate got here, and why Harry Reid confidently brought 51 of his 54 Democratics colleagues on board with a rules change that Washington long thought impossible: the end of filibusters on executive branch nominees and judicial nominees for lower courts.*
The Gang of 14 went extinct. You can start writing the history of the judicial wars at many points in time—the Bork nomination in 1987, the Republican filibusters of the Clinton years, the Democratic filibusters of the George W. Bush presidency. But the deal that kept a sort of peace for eight years was crafted in 2005, after a good election gave Republicans 55 Senate seats but Democrats kept blocking a posse of conservative nominees. Republicans threatened to rule filibusters out of order—this was quickly dubbed "the nuclear option," and put lots of senators on the record with positions they would reverse when they switched majorities.
But it wasn't ever clear that Republicans had 51 votes to push through the change. When seven Republicans joined seven Democrats to end the crisis, that seemed to confirm the cynics. The "Gang of 14" deal teamed up some of the Democrats' elder statesmen, like Robert Byrd, with some of the more moderate Republicans.
Eight years later only five of the 14 Gang members remain in the Senate. Four of the Republicans were either defeated by Democrats or retired and replaced by Democrats (or, in Olympia Snowe's case, an independent), all of whom backed filibuster reform. Three of the Democrats were replaced by more progressive senators, all of whom backed reform. Nebraska Sen. Ben Nelson was replaced by Republican Sen. Deb Fischer, who hasn't found much of a leadership role in the Senate; West Virginia's iconic Sen. Robert Byrd was replaced by dealmaking Sen. Joe Manchin, who would vote against a rules change but did not rally his colleagues against it.
Democrats stopped seeing the benefit of the old rules. Older, more patronizing members of the Senate liked to chastise the supporters of the nuclear option by pointing out that they'd never been in the minority. And that was true—Oregon's Jeff Merkley, the soft-spoken ringleader of the reformers, had only arrived in the Senate in 2009, when the Democrats' biggest problem was rounding up the pesky 60th vote for nominees. But Democrats new and old grew to mistrust the GOP.
"I know that if there is a Republican president and a Republican majority, they will force up-and-down votes because they demonstrated their committment to that principle in 2005," Merkley told me this month. "There is, in a democracy, power that goes with the voice of the people."
Merkley was both wide-eyed—hey, shouldn't the winner of an election get up-or-down votes anyway?—and cynical. Over time, the party's leaders and statesmen grew to agree with the cynical part. What had they gotten for the 2005 deal? A bunch of Republican judges and a promise that only "extraordinary circumstances" would stop future nominations. They felt that Republicans had broken the second part of the promise but would invoke it if they won the next election. By last week, when Judiciary Committee Chairman Pat Leahy was banging a dais about the "broken word," it was clear that most Democrats agreed with Merkley. Did they want to put up with GOP filibusters for three or seven or 11 more years, then watch the barrier fall as soon as a new Republican president demanded it?
Chuck Grassley played chicken and lost. In June, when the White House announced three nominees for open D.C. Circuit seats, the Iowa senator started on a crusade to block them. He proposed redistributing two of the seats to other circuits, and nixing the third to save money. This, and not any ideological questions about the nominees, was the reason most Republicans filibustered them.
And that tore it. Democrats had no interest in cutting a deal; no Republican was emerging to craft one. In one year, even in the best circumstances, they were likely to lose a few Senate seats and fall below the majority needed for a rule change. Grassley, who'd arrived in the Senate in 1981, was emblematic of the new Senate GOP. He'd never voted against a Supreme Court nominee until Barack Obama was president. In the future, causes like his would be backed up by an increasingly right-wing GOP Senate caucus, as more Kay Bailey Hutchisons were replaced by Ted Cruzes and Bob Bennetts were replaced by Mike Lees.
There looked to be no stopping Grassley. So they revved up the deathproof car and ran right over him.
*Reid's rule technically leaves Supreme Court nominees open to filibusters, but no nominee for that court has been filibustered since the introduction of the 60-vote threshold. Bork was defeated by an up-or-down vote; Clarence Thomas got only 52 votes, but Democrats, who ran the Senate, did not filibuster him.
Wait, What Just Happened in the Senate?
Majority Leader Harry Reid's "nuclear option" has passed, meaning Republicans will no longer be able to filibuster executive and judicial nominees. From now on, nominees will only need a simple majority, aka 51 votes, to be confirmed. Supreme Court nominees can still be filibustered.
From inaction for more than a year and the filibustering of four of five nominees to the D.C. Circuit Court, the entire discourse was turned around in the span of an hour. Heritage Action quickly "key-voted" the measure, meaning any Republican dumb enough to vote "no" would incur the wrath of the conservative PAC. The final vote was 48 ayes, 52 nays (confusingly, a "no" vote meant "yes" for dismantling the filibuster). Reid left the juicy 51st vote for himself.
Why is this such a big deal? For one, it will tip the ideology of the second-most-powerful court in the country:
The D.C. Circuit Court of Appeals has outsize influence reviewing many of the cases involving federal administrative agencies, and four of the nine Supreme Court Justices have served on the court. The eight active judges on the court are split evenly by party ideology, although Republicans appointed five of six senior status judges, who sometimes hear cases.
The only reason it was called the "nuclear option," as far as I can tell, was to trick readers into clicking on stories about procedural rules. Hopefully now news outlets can stop calling this the "nuclear option" and just say "filibuster reform" like normal humans.
Mitch McConnell's Dazzling Feats of Filibuster Flip-Floppery
When Senate Majority Leader Harry Reid took to the floor Thursday, reporters were abuzz about him bringing up the "nuclear option"—getting rid of fillibusters for judicial or executive nominees, except for Supreme Court nominees. But when he got to the floor, he started talking about an entirely more literal nuclear option; specifically, tightening sanctions on Iran. "We must do everything possible to stop Iran from getting nuclear weapons capability," he said.
After finishing, reporters put down their phones in disappointment, but Reid was back on the floor a few minutes later to bring up filibuster reform. "We've wasted an unprecedented amount of time on procedural obstruction," he said. "It's time to change the Senate before this institution becomes obsolete." He pointed out that Republicans have rejected four out of five of President Obama's nominees for the D.C. Circuit Court, while Democrats only rejected two of George W. Bush's six nominees.
Senate Minority Leader Mitch McConnell wasn't going to let that stand pat. He rose to the mic and delivered Republicans' core argument: This is a distraction from Obamacare! "Obamacare was forced on the public by the administration," McConnell began, then accused Democrats of cooking up "some fake fight over judges."
Of course, Reid is not an altogether innocent player. As McConnell readily pointed out, Democrats "pioneered" the practice of filibustering circuit court nomineees during the Bush administration. It wasn't a "fake fight" for McConnell back then—he was a staunch opponent of judicial filibusters when they were aimed at Republican nominees. Here's McConnell in 2005 arguing against the filibuster: "My Democratic colleagues want to change the rules." And McConnell in 2013, arguing to keep the filibuster in place: "They want to change the rules of the game."
So today, filibuster reform continues to be stymied by the same flexible morals of party loyalty that it's supposed to prevent. Weirdly, just as I was typing that the Republican argument for keeping the filibuster in place amounts to "They started it," McConnell literally said, "They started it."
Newt Gingrich to the Rescue!
Newt Gingrich knows how Republicans can replace Obamacare—with science! From his USA Today column:
The breakthroughs that are on the verge of reality are almost unbelievable. Small wireless sensors in the bloodstream, for instance, could soon catch an impending heart attack days before it happens, allowing genuinely at-risk patients to seek preventative treatment and most others to forgo expensive drugs that may not actually help them.
In other labs across the country, scientists are growing all kinds of regenerated organs from patients' own cells. Already there are people who have been walking around for more than a decade with bladders grown in a lab. Soon it will be possible to regenerate kidneys, enabling patients who today need expensive dialysis to reclaim their lives -- and ending the shortages that cause thousands of Americans to die each year waiting for a transplant.
Before long, regenerated pancreases, lungs and other organs could cure diabetes, cancer and many of the most lethal and costly diseases that plague us today.
While it's encouraging to see a Republican openly support stem cell therapy, the problem with the American health care system isn't technology (not medical technology, at least). The U.S. already has the most advanced medical technology in the world, and we spend more on health care per capita than any other country.
So why does the World Health Organization rank the U.S. 37th in the world in overall health system performance? Because, in terms of access and equity, our health care system is terrible.
Terry McAuliffe Begins His Reign of Sleaze
Say what you will about newly elected Virginia Gov. Terry McAuliffe, but he's never tried to seem anything that he's not. Quite the opposite, he relishes being known as "the ultimate political insider" who's bosom buddies with the Clintons.
He may be a veteran political animal in Washington's groteque menagerie, but he has the public office experience of Arnold Schwarzenegger—which is to say, none. Quoth the Richmond Times-Dispatch: "His ignorance of state government is laughable and makes Rick Perry, the notorious governor of Texas, look like a Founding Father."
McAuliffe has now appointed Levar Stoney, a GreenTech employee and McAuliffe's former deputy campaign manager, to be secretary of the commonwealth. Aside from the whole GreenTech ethics investigation, in 2004 Stoney was embroiled in a scandal involving Democratic operatives who slashed the tires of vans mean to drive Republican voters in Milwaukee County to the polls. He told the jury he wanted to become a U.S. senator one day.
What does the secretary of the commonwealth, which is the fifth rung down in the governor's Cabinet, actually do? Watchdog.org:
Duties of the secretary of the commonwealth include managing extraditions, clemency petitions, service of process, restoration of voting rights, pardons, authenticating foreign adoption documents, certifying notary publics and handling lobbyist registration, disclosures and conflict-of-interest filings.
Stoney will also be responsible for more than 4,000 appointments to state boards and commissions. Let the circle of quid pro quo be unbroken.
That Time Bill O'Reilly Reported on a JFK Conspiracy Theory
For the past 50 years, the assassination of John F. Kennedy has been catnip for conspiracy theorists. But it also lent an auspicious start to one revered television journalist: Bill O’Reilly. In 1979, long before he wrote Killing Kennedy, O’Reilly was a 30-year-old reporter at WFSB in Hartford, Conne. As part of a four-part series on the Kennedy assassination, O’Reilly reported on the conspiracy theory of the “Umbrella Man.” WFSB recently unearthed the forgotten footage of O’Reilly’s story.
The whole video is worth a watch:
The Umbrella Man myth goes as such: Photos from Dealey Plaza show a man holding an umbrella—despite it being a sunny, 68-degree day—less than 100 feet away from Kennedy’s passing motorcade. Moments later, Kennedy had been shot through the head and throat. Conspiracy theorists believe the Umbrella Man shot Kennedy in the neck with a dart, or flechette, fired from the tip of his umbrella, Penguin-style.
“Now, all of this may sound a little far-fetched,” O’Reilly tells the camera. “But some researchers believe it, and they point to some hard evidence.” Those “researchers” include one Massachusetts architect whose elaborate diagrams are shown on screen. O’Reilley also reached Richard Bissell, one of CIA’s early and storied officers, who confirmed that the CIA had developed just such a flechette-firing weapon.
O’Reilly goes on to cite the Dallas hospital’s autopsy report, which originally described “the massive would of the head and a second puncture wound of the low anterior neck in approximately the midline.” But when the autopsy was typed up for distribution, the word “puncture” was replaced with “smaller.” His other piece of evidence is an internal FBI memo acknowledging the receipt of a “missile” taken out of Kennedy’s body.
In an interview with O’Reilly, retired FBI agent Francis X. O’Neill, who witnessed Kennedy’s autopsy, explained the “missile” was composed of two bullet fragmentations taken from Kennedy’s head. But that answer wasn’t satisfactory to the young journalist. “Alright, let me get this straight,” O’Reilly says with already practiced gravitas. “There were two fragments in the packet that was handed to you, but you signed a receipt for a missile. Now that’s not very exact, and FBI men are usually very exact.”
But before O’Reilly’s story ran in 1979, the Umbrella Man theory had already been debunked—by the Umbrella Man himself. As this short film from 2011 by Errol Morris explains, Dallas resident Louie Steven Witt identified himself as the Umbrella Man in 1978. Testifying before a congressional committee, Witt said he held up the umbrella as a protest. (It was supposed to be a symbol for Neville Chamberlain, the World War II capitulator supported by Kennedy’s father.) “In a coffee break conversation someone had mentioned that the umbrella was a sore spot with the Kennedy family,” Witt told the committee. “Being a conservative-type fellow, I sort of placed him in the liberal camp and I was just going to kind of do a little heckling.”
It’s strange the enterprising O’Reilly missed Witt’s testimony. He can certainly appreciate the value of giving someone a good "heckling."
Rep. Trey Radel Busted for Cocaine Possession
John Bresnahan and Jake Sherman have the scoop:
Rep. Trey Radel, a freshman Republican from Florida, was arrested on Oct. 29 for possession of cocaine in the District of Columbia, according to D.C. Superior Court documents.
Radel, 37, was charged with misdemeanor possession of cocaine in D.C. Superior Court on Tuesday. He is scheduled to appear in court on Wednesday.
One fact that reporters have disconcertingly glommed onto in the ensuing Insta-Narrative™ is the fact that Radel is a self-described "hip-hop conservative," and waxed poetic about his love for Chuck D. in a BuzzFeed post. Yes, hip-hop often celebrates drug culture. But for one thing, Radel's supposed hero, Chuck D., is a big anti-drug activist. For two, if I'm a Flock of Seagulls fan, that doesn't mean I'm running out to get a pompadour.
Update: Here's Radel's statement:
I'm profoundly sorry to let down my family, particularly my wife and son, and the people of Southwest Florida. I struggle with the disease of alcoholism, and this led to an extremely irresponsible choice. As the father of a young son and a husband to a loving wife, I need to get help so I can be a better man for both of them.
In facing this charge, I realize the disappointment my family, friends and constituents must feel. Believe me, I am disappointed in myself, and I stand ready to face teh consequences of my actions.
However, this unfortunate event does have a positive side. It offers me an opportunity to seek treatment and counseling. I know I have a problem and will do whatever is necessary to overcome it, hopefully setting an example for others struggling with this disease.
Please keep my family in your prayers.