Ever wonder where Republicans got their plan to end Senate filibusters and ram the Bush roster of ultra-conservative judges through the confirmation process?
From a lobbyist of course.
Amid all of the invective and fury of the filibuster fight on Capitol Hill, one of the weapons of choice is a 67-page treatise on the history of Senate debate that clocks in with 434 footnotes and the take-a-deep-breath title of “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster.”
The article by lobbyist Martin Gold, an expert on Senate parliamentary procedure, was published in last fall’s edition of the conservative Harvard Journal of Law & Public Policy.
It soon became a rallying point for advocates of the so-called nuclear option, under which Republicans would ban Democrats from filibustering President Bush’s judicial nominees.
Just as quickly, opponents of the proposed ban began churning out rebuttals claiming that Gold’s research actually reinforces their argument that there is no historical foundation for scrapping the judicial filibuster.
Rebuttals to the rebuttals came next, and so on.
Gold, 58, began his research in 2003 while serving on the staff of Senate Majority Leader Bill Frist, R-Tenn., and now serves as an unpaid adviser to him.
He eschews the term “nuclear option” and instead prefers to call it the more understated “constitutional option.” He coolly calls the article, which he wrote with former colleague Dimple Gupta, simply one “resource” in the debate.
Partisans, meanwhile, invoke his name, for good and ill, with exclamation points.
The Coalition for a Fair Judiciary, which supports Bush’s nominees, trumpets his article on its Web site as “A MUST READ!”
“I constantly refer to it because it’s such a remarkable document,” said Kay Daly, the coalition’s president.
Sen. Robert Byrd, the West Virginia Democrat who served as majority leader from 1977-1989, dismissed with equal vigor its conclusions that he established precedents that justify the change. “Utterly false,” he declared.
Gold himself offers more restrained observations about the whole to-do. Some excerpts from a recent interview:
Q: How did you come to write the article?
A: I undertook, really on my own, to research the various debates around reform of the filibuster and also the ways in which precedents had been used to affect Senate procedure. That basic research was done during 2003 and when I left Senator Frist’s staff in January of 2004, I returned to the private sector and began to put pen to paper.
Q: At the time of your research, was the “nuclear option” being discussed?
A: You can be quite sure that there were extremely preliminary conversations about adjusting Senate procedures if these filibusters continued to multiply. … If nobody had been talking about these kinds of things, I wouldn’t have bothered to do the research. At the same time, it wasn’t like somebody developed a real or comprehensive plan of action and then looked for the research to support it.
Q: How do you research something like this?
A: You’ve got to go back to the Congressional Records for years and read a lot of very interesting and erudite arguments, some of which are redundant and some of which are articulate. But there’s no substitute to going back to read those records.
Q: Are you surprised by all the attention your article has attracted?
A: … There were a variety of ways that the issue of judicial filibusters could have otherwise been resolved, in which case this article would have attracted little to no attention. It does not surprise me that it has attracted substantial attention given how the situation evolved. But it was not intended to provoke that situation by any means.
Q: Have you talked with senators about the article?
A: I probably ought not to comment on that. They wouldn’t want me to say.
Q: Is this the kind of thing you make small talk about at parties?
A: I have a lot of subjects that interest me and the Senate is one of them. There are many others. … Food and wine, football, to name a couple.
Q: What do you make of the rebuttals and sur-rebuttals to your article?
A: People can look at history and reach contrary conclusions. Biographers do it all the time. Historians do it all the time. And no one should be arrogant enough to imagine that his or her interpretation of history is beyond question or the only possible answer.
Q: This topic generates a lot of heat. Has any of that come your direction? Is it possible to have a sense of humor about this?
A: I surely hope so. It’s a terribly serious matter but it is also necessary to have a sense of perspective.
Q: How does one become an expert on Senate procedure and practice?
A: … It is always easier to study something if you love it, and I’ve been fortunate enough to be in a position to study it and I’ve had a passion to do so because I love it.
Q: Do you think the “constitutional option” should be invoked?
A: It’s not my choice. It’s the Senate’s choice. They have to decide what kind of Senate they want and how best to fulfill their constitutional obligations.
On the net:
Gold/Gupta article: https://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf
People for the American Way rebuttal: https://www.pfaw.org/pfaw/dfiles/file_495.pdf
Coalition for a Fair Judiciary rebuttal to People for the American Way: https://fairjudiciary.campsol.com/cfj_contents/press/022305.pdf