Sunday, March 10, 2013

Filibusters and Folly

Filibusters And Folly

On April 8, 1826, John Randolph, Senator of Virginia, and Henry Clay of Kentucky, then Secretary of State, and once and future Senator, met, with their seconds, on the field of honor. 

Dueling was illegal at the time in Virginia, but, since Senator Randolph insulted (quite definitively) Secretary Clay, a gentleman’s only alternative was to duel, with pistols, at an absurdly short distance. 

Randolph was upset with Clay’s support for John Quincy Adams over Andrew Jackson in the four-way (Adams, Jackson, Clay, and William Crawford of Georgia) 1824 Presidential election.  Jackson got the most popular and electoral votes, but not enough for a majority, and the deadlock went to the House of Representatives. There, Clay threw his support behind Adams, whom he thought would be more sympathetic to Western interests. Adams became President, and then appointed Clay Secretary of State.  This enraged Randolph (a man easily enraged) and he conjured up a conspiracy between Clay and Adams, calling it a “corrupt bargain” and Clay a “blackguard.” For good measure Randolph accused Clay of “crucifying the Constitution and cheating at cards.”

Clay had to respond with a challenge, and official Washington worried because Randoph was considered a crack shot and Clay indispensible.  By 1826, Clay had already been the youngest Senator in American history, Speaker of the House three times, and was instrumental, with Senators Daniel Webster of Massachusetts and John C. Calhoun of South Carolina, in brokering the Missouri Compromise and averting a constitutional crisis between North and South. 

Both men’s first shots missed. At this point, Thomas Hart Benton, Senator of Missouri, tried to stop the duel, but neither man’s honor seemed satisfied.  Clay's second shot also missed, passing through Randolph’s cloak, and, by the code, he had to wait to receive Randolph’s return fire.  Clay and the onlookers waited, for what must have seen like an eternity.  And then Randolph raised his pistol above his head, and fired into the air. 

I always thought this was a fascinating story.  Three of the great figures of the first half of the 19th Century together for what could have been a history-altering event.  Randolph, known for his vile temper and sharp tongue, and Benton, for his prodigious appetites and extraordinary oratorical skill, were both known to be able to hold the floor for hours, or even days, on legislation they opposed.  In 1825 Randolph talked for several days in opposition to a series of measures proposed by Adams that, in his view, favored the emerging trading and industrial powers of New England at the expense of the more agrarian South. This series of speeches was considered the first Senate filibuster.

Last week, another Senator from Kentucky, Tea Party favorite Rand Paul, mounted his own filibuster of more than 13 hours, garnering plenty of attention and more than a little admiration.  Paul sought to delay the nomination of John Brennan as Director of the CIA until he got an up or down answer from the Obama Administration as to whether drones could be used on American citizens on American soil.   Senator Paul got his answer, stopped the filibuster so a cloture vote could be taken, voted for cloture, and then against Brennan’s nomination, which passed anyway.  

What made Paul’s effort so interesting was that he actually filibustered.  He went to the well of the Senate, and like Jimmy Stewart, he talked, and talked, and talked some more.  Not much of what he said would be compared to Randolph, or Benton, but he did something that Senators had been avoiding for quite some time.  He actually put his mouth where his money was.

Rand Paul is now a bit of a rock star, and a lot of the electorate is either bemused or admiring.  But he also took the lid off of another and far more pernicious practice, that of filibustering everything you don’t agree without actually making any more of an effort than an “I object.”

Why is this a problem, and, haven’t there always been filibusters?  Yes, although in the past, you actually had to do what Senator Paul did; take the floor and not yield it (except to a friendly Senator who would yield it back) until the legislation you opposed was withdrawn, or you dropped to the floor, Jimmy Stewart-style, in a faint. 

Given that in the past, we always got the real stuff, there must have been a lot of orating and a lot of fainting?  Not as much as you might have thought.  While it is impossible to track every filibuster and every Senatorial hold (the cheap, anonymous filibuster that literally takes no effort beyond telling your caucus’s leader you object) we can count Cloture motions.  From the 65th Congress (beginning in 1917) through the 91st Congress, ending in 1970, there were a total (total) of 58 Cloture motions filed, or barely more than one a year.  Things got friskier from the 92nd to the 101st Congress (1970-1990), where there was an average of about 18 a year.  During the Clinton years, the average rose to about 36 per year, and that stayed reasonably constant during the first six years of the Bush Presidency.  There tend to be more filibusters in Presidential election years, because the party controlling the Presidency likes to push through as many of their own as they can, while the party out of power hopes for electoral success and their own appointees come January.  Mr. Bush’s last two years in office showed another spike.

And then came Mr. Obama, for whom the GOP has the greatest difficulty accepting as anything more than a “community organizer” for whom every year is a “last year.”  Despite his two decisive electoral wins, the GOP simply cannot bear to allow him to appoint his own Cabinet, or exercise his Constitutional right and duty to appoint judges to the Federal Courts.  In Mr. Obama’s four years and one month in office, there have already been 257 Cloture motions filed.  53 Cabinet and Judicial nominations have been blocked, or more than twice Mr. Bush’s total in eight years.  And these don’t even count the nominations that remain bottled up in committee.

The reasons?  Well, they range from piqué to political posturing to what appears to be outright mendacity.   In some cases, like the President’s attempt to nominate B. Todd Jones to head the ATF, or Richard Cordray to head the Consumer Financial Protection Bureau, the GOP blocked the nominee because they don’t agree with the laws creating the agencies.  Since they lack the votes to repeal the legislation (and since they oppose regulations of firearms and consumer safety) they hamstring those organizations to keep them from functioning.  In others, such as Cabinet nominees Hagel and Brennan, they were held hostage to demands that the nominees agree with Republican policies, or the Administration give more information about Benghazi.  And, in the most egregious, the GOP continues to block the nomination of Caitlin Joan Halligan to be a Judge on the influential DC Circuit.  What’s wrong with Ms. Halligan?  To start with, she is opposed by the NRA, who apparently gets a veto on all nominees.  But there is more to it than that.  Ms. Halligan has been nominated for a seat in an influential circuit which is currently dominated by Bush appointees, and which has consistently ruled against Mr. Obama (including, most recently and controversially, on recess appointments that every President has made since time immemorial.)  Now, what makes this even more fascinating is that there are four vacancies on that court, and the GOP will not let Mr. Obama place anyone on there.  So, did all four retired judges suddenly up and leave at the same time?  Not really.  Ms. Halligan’s seat was previously held by none other than John Roberts--yes, that John Roberts, who, as you know, has been otherwise employed elsewhere for several years.

As for one of Mr. Obama’s other nominees for a seat on that court, Srikanth “Sri” Srinivasan, presently the Assistant Solicitor General, former Justice Sandra Day O’Connor said of his nomination. “I thought it was wonderful….He was a splendid law clerk and a fine lawyer. He does thorough research and I think he’s a splendid choice for an appellate court position.”

Of course, that’s just Sandra Day O’Connor.  What does she know about judging when the Wall Street Journal and National Review oppose the nomination? 

It does make one a little nostalgic for the days of big figures, warts and all, dueling it out on the Senate floor (or, sometimes in an open field with pistols at 30 paces.) 

After Randolph discharged his gun harmlessly, Clay approached him, “Mr. Randolph are you hurt?” No, Mr. Clay.” replied Randolph, “But you owe me a new coat.”  “I am thankful the debt is no greater” replied Clay, and then the men shook hands.

Randolph died in 1833, aged 60, of tuberculosis.  According to his attending physician, his last thoughts were to be certain his slaves were freed.  In 1819, Randolph provided in his will for the manumission of his slaves after his death. He wrote, "I give and bequeath to all my slaves their freedom, heartily regretting that I have ever been the owner of one."

Clay went back to the Senate, ran for President twice more, in 1832 and 1844, helped broker a settlement to the Nullification Crisis in 1832, and, even more critically, the Compromise of 1850, which helped keep the Union together at a time of high tension between the slave and free states.  He, too, died of tuberculosis, and like Randolph, freed all of his slaves on his death. 

In 1852, Abraham Lincoln, then an Illinois State Senator, eulogized Clay in the Hall Of Representatives: “Mr. Clay's predominant sentiment, from first to last, was a deep devotion to the cause of human liberty -- a strong sympathy with the oppressed everywhere, and an ardent wish for their elevation. With him, this was a primary and all controlling passion. Subsidiary to this was the conduct of his whole life. He loved his country partly because it was his own country, but mostly because it was a free country; and he burned with a zeal for its advancement, prosperity and glory, because he saw in such, the advancement, prosperity and glory, of human liberty, human right and human nature.”

Of the Clay-Randolph duel, Thomas Hart Benton later said it was the “last high-toned affair” he ever witnessed. 

“High-toned” might be an archaic term, but the idea of coming out into the sunlight to fight for something you believed in, and, when the matter concludes, returning to the task you were elected to do, is never archaic.

Rand Paul, for one moment, showed that.  Pity more of his party doesn’t follow him. 


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