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By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Former Senate Majority Leader George Mitchell recently opined that GOP Senators want to "silence the minority" with regard to judicial nominations. On the contrary, the Senate GOP would be glad if the minority would engage in a real talkathon, instead of a fake, silent filibuster. The GOP would also be glad to go along with Mitchell's suggestion to "limit and restrict" filibusters, so that there can ultimately be a final up-or-down vote on nominations, as Mitchell described during a CNN interview on December 2, 1994:

INTERVIEWER: [W]hat is the purpose of a filibuster? What constructive purpose does it serve?

Sen. MITCHELL: It can prevent precipitous action. It's intended to permit a longer time for consideration. Like all things in life that serve a useful purpose, it can be abused, and it was abused in this Congress. . . . .

INTERVIEWER: Do its advantages outweigh its disadvantages anymore?

Sen. MITCHELL: I think we should keep it, but I think we should limit and restrict the opportunities for its use so that we keep the good and prevent the abuse.

Sen. Mitchell was prescient. He endorsed filibuster reform even before anyone began abusing filibusters to defeat majority-supported judicial nominations.

Here's the complete text of the CNN interview from December 2, 1994
available via Lexis-Nexis.

Mr. FRANKEN: You became majority leader in 1989, which raises an
interesting point. You were almost unprecedented in your ability to
overturn the Senate tradition of seniority then and move past
everybody, but Senate traditions die very hard here, to the point that
there are many people who feel that the Senate, frankly, is obsolete.
Do you think that in some ways it is?

Sen. MITCHELL: No, I don't think the Senate's obsolete. I think that
the previous restraint that senators had exercised with respect to the
rules had vanished, and as a result, the rules are being abused in a
way that obstructs and prevents action. That wasn't intended by the
men who started this country and wrote the Constitution. I think we
should have reform, but I don't think the Senate's obsolete.

Mr. FRANKEN: Well, you're talking about the filibuster.

Sen. MITCHELL: Yes.

Mr. FRANKEN: And the view that many people have is that the popular will can be overly thwarted by use of the filibuster, and you're
saying that was demonstrated this year. Why do we need the filibuster
anymore?

Sen. MITCHELL: The Senate is unique among legislative institutions in
the world, in part because of two rules - one, the unlimited right of
debate, which can become a filibuster, and the unrestricted right of
amendment.

I think we should keep them, but we should limit the opportunities
for their use much more than is now the case. To give you an example -
not just an example - to cite some facts to illustrate the need for
this, in the entire 19th Century, there were only 16 filibusters, one
every six and a half years. In most of this century, they occurred
less than once a year. In this Congress just concluded, there were 72
times that we had to file motions to end filibusters.

Mr. FRANKEN: But what is the purpose of a filibuster? What
constructive purpose does it serve?

Sen. MITCHELL: It can prevent precipitous action. It's intended to
permit a longer time for consideration. Like all things in life that
serve a useful purpose, it can be abused, and it was abused in this
Congress. I hope the next Congress doesn't act in the same way.

Mr. FRANKEN: But, Senator, when the law is written, one of the things that's always significant is it's written in a way to avoid abuse, or
else it isn't written. Here you have a procedure that is inherently
available for abuse. Do its advantages outweigh its disadvantages
anymore?

Sen. MITCHELL: I think we should keep it, but I think we should limit
and restrict the opportunities for its use so that we keep the good
and prevent the abuse.

Mr. FRANKEN: But what is the good?

Sen. MITCHELL: The good is that there are occasions in which there
ought to be a longer period for consideration, for careful
deliberation, and mature thought given to a subject, rather than
rushing it through. That's one of the advantages of the Senate. The
House moves quickly; the Senate takes longer.

Mr. FRANKEN: But one person's need for deliberation is another
person's stalling tactic.

Sen. MITCHELL: That's true, and it ought to be, ultimately, a
majority in the Senate. It's a majority of 60.

Mr. FRANKEN: Well, let's talk about the Senate, this intentionally
old-fashioned, somewhat anachronistic body in modern times. I get back
to the same question - has it, in many ways, really sort of - its
procedures - outlived its usefulness?

Sen. MITCHELL: No, I don't think so, and I think when you say
something is anachronistic and doesn't work, you have to define what
you're trying to accomplish. It's true that, with respect to a
particular bill or a particular debate, the Senate may stall, and
delay, and obstruct and it doesn't get done, but step back a little
bit and look at the broader perspective. What is the objective of our
government?

The men who wrote the American Constitution wanted, above all else,
to prevent tyranny from existing in America. They lived under a
British king. They didn't want there to be an American king, and so
they created a system with a lot of checks and balances. They made it
tough to get things done because they didn't want bad things to
happen. Looked at in that context, our system is spectacularly
successful.

Mr. FRANKEN: But the checks and balances were supposed to occur
within the separation of powers. The executive-

Sen. MITCHELL: -Sure.

Mr. FRANKEN: -on the legislative, and we all know that. Why is it,
however, that the legislative branch, whose job it is is to make laws,
among others, has become so unable to do so?

Sen. MITCHELL: Well, first, we did write a lot of good laws this
year. We didn't pass every bill, but there's nothing in the
Constitution or the heavens that says every bill introduced must pass.
Sometimes a bill ought not to pass. I think that's fair to say.
Now, I don't want to be defending the filibuster and I don't want to
be defending the obstructionist tactics that the Republicans used in
this past Congress. But I think the appropriate course is to say that
we retain those provisions which make the Senate the unique
institution it is, but we reform them in a way that doesn't lend
itself to abuse of those procedures, as occurred in this past
Congress.