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.
MM
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