In The Matter of the Hagel Filibuster

After several Republican senators pledged to block the Senate from providing advice and consent on Chuck Hagel’s nomination, Majority Leader Harry Reid filed cloture on the matter. Senator Reid then complained on the Senate floor that this “is the first time in history that a presidential nominee for secretary of defense has been filibustered. What a shame.”

In an attempt to justify their procedural maneuvering, Senators Lindsey Graham and John Cornyn made two bizarre statements in their interviews with Foreign Policy that would make George Orwell blush.

Let’s first consider Senator Lindsey Graham. He claims that he opposes a “filibuster” of Mr. Hagel, and is instead merely placing a “hold” on the nomination. This is the kind of slippery Washington-speak that has left so many Americans fed up with Congress. That’s because Senator Graham’s “hold” is actually a threat to filibuster. And Senator Graham knows that it’s far easier to place a hold than to carry out a talk-a-thon live on C-SPAN. By placing a mere hold, Senator Graham gets all of the benefits of a filibuster but none of the trappings of senatorial duty (like actually explaining himself to his colleagues until he runs out of things to say).

As this excellent report by the Congressional Research Service (C.R.S.) explains, “holds” are merely “silent filibusters.” A “hold” is not even provided in the Senate rules; it is an informal device that senators use to signal their intent to wage a filibuster. In the words of the C.R.S. report, “holds’ require no public utterance.” It would have been more accurate for Senator Graham to say that while he opposes a talking-filibuster of Mr. Hagel, he fully supports doing so silently from the comfort of his office. Piece of cake!

Then there’s the whopper from Senator John Cornyn. It’s about the size of his home state of Texas. To justify his efforts to block a majority of his colleagues from voting, he says that “[t]here is a 60-vote threshold for every nomination.” Actually, there’s not a 60-vote threshold for “every nomination.” In fact, there hasn’t been a sixty-vote cloture vote on a cabinet nominee for any of President Obama’s other cabinet officers.

But even more peculiar about Senator Cornyn’s factual error is that he would say it in the first place.

That’s because Senator Cornyn wrote a law review article back in 2003 for the Harvard Journal of Law & Public Policy titled “Our Broken Judicial Confirmation Process and the Need for Filibuster Reform.” In that article, he forcefully argued that “regardless of whether individual Senators support or reject a particular nominee, once a majority of the Senate is ready to act, it should be allowed to do so.”

He goes on to claim that filibusters of presidential nominees “offend the constitutional structure and separation of powers because they effectively reorder the Constitution’s allocation of executive power with respect to appointments.” Senator Cornyn lambasted a situation like the Hagel nomination, wherein “a minority of Senators has hijacked the process and will not allow the majority to conduct the nation’s business.” He adds that “[s]imply put, filibusters are the most virulent form of unnecessary delay one can imagine.”

Of course, Senator Cornyn is entitled to change his views on the matter. But before doing so, perhaps he should have taken the time to read his own article published just a decade ago. Particularly the part where he said that filibusters of presidential nominees are “an abomination.”