Judicial Confirmations And The Nuclear Option: A Little History from A Hugh Hewitt Show Caller

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My friend and former law partner Ralph Kostant called the Hugh Hewitt show today and shares his follow-up e-mail to Hugh regarding his call:

As I mentioned in my call in to your show this afternoon, the perfect precedent for solving the present impasse in the Senate is the example of Speaker of the House Thomas “Czar” Reed (R-Maine), who in 1890 defeated the obstructionism of the Democratic minority in the House of Representatives, who employed a long-standing House procedural rule known as the “Silent Quorum” or “Disappearing Quorum”. In 1890, the Republicans had a slim 168-160 majority, and a quorum in the House was 165 members. Under the rule, any member could stop proceedings by simply calling for a roll call to see if there was a quorum of members. If a member did not respond when his name was called, he was then counted as absent, even if he was visibly sitting in the House chamber. In this way, the Democrats could stop any Republican bill.

The issues on which Speaker Reed chose to go to battle were the seating of four Republican African-American Congressmen elected from Southern Districts and the passage of legislation to fight the poll tax that Southern Democrats used to defeat African-American sufferage. He shrewdly calculated that if he chose to count present but silent members of the House on these issues, he would be backed both by his Republican majority (which on any other issues might have been reluctant to change the House quorum rules) and by the law, if it came to a court challenge. On January 29, 1890, when a vote on those bills was called, the Democrats predictably called for a quorum roll call, and remained silent when their names were called. Only 163 members responded yea. Speaker Reed then directed the Clerk of the House to “record [as present] the names of the following members who are present but refusing to vote.”

Pandemonium broke loose on the floor. Memorable quotes from Democratic Congressmen included gems such as “I deny your right, Mr. Speaker, to count me as present,” to which Reed responded, “The Chair is making a statement of fact that the gentleman is present. Does he deny it?”

The brouhaha continued for five days as the Democrats tried every procedural tactic available to defeat the change of the rules. Every sort of abuse and profanity was directed at the Speaker. Speaker Tweed and the Republicans held their ground and put an end to the silent quorum, allowing the progressive Republican legislative agenda to move forward.

For a full account of this epic parliamentary battle, I recommend the chapter “The End of the Dream,” in Barbara Tuchman’s wonderful work, THE PROUD TOWER—A Portrait of the World Before the War 1890-1914 (Macmillan 1966).

All it will take is Republican backbone.

Ralph B. Kostant

In a separate e-mail, Ralph offers more:

Here are some other memorable barbs from Speaker Thomas Reed, as recorded by Barbara Tuchman:

In response to a Congressman, Representative Springer of Illinois, who had declared in a floor debate that he would rather be right than President. Reed interjected, “The gentleman need not be disturbed; he will never be either.”

When a member, known for his ill-digested opinions and halting manner, began to speak with the words, “I was thinking, Mr. Speaker, I was thinking …,” Reed expressed the hope that “no one will interrupt the gentleman’s commendable innovation.”

Of two other inarticulate Congressmen, he observed, “They never opened their mouths without subtracting from the sum of human knowledge.”

We need to get Ralph blogging.