Friday, April 22, 2005

Fili-bluster on the Senate filibuster

Commentary by David Reinhard


By DAVID REINHARD

David Reinhard

It's hard to believe Senate Democrats aren't secretly mortified that, in order to stop President Bush's appeals court judges, they now must embrace the favored tool of our republic's slaveholders, white supremacists and segregationists. Clearly, going down in history with Theodore Bilbo, James Eastland and the great filibusters of yore must be disorienting. How else to explain Democrats' confusion and memory lapses when hailing the filibuster's grand tradition and trashing current Republican efforts to curb its misuse on judicial nominations?

True, senators have filibustered appeals court nominations in the past. But filibustering nominees with clear majority support in the Senate—requiring nominees to gain a super-majority for Senate approval—was never done before the last Congress. (Abe Fortas' Supreme Court nomination was withdrawn when a bid to end Senate debate received less than a simple majority.)

In fact, filibusters weren't even contemplated for anything except legislation until 1968. That happened as a result of a 1949 rule change that included broad language that arguably allowed filibusters in nominations and other non-legislative matters. Even if Republicans pursue the so-called "nuclear" or "constitutional" option—a parliamentary ruling that would bar using the filibuster to block judicial nominees—the rule change will limit only filibusters of judicial nominees. It won't affect legislation at all. The issue that Jimmy Stewart famously filibustered in "Mr. Smith Goes to Washington" was an appropriations bill that would still be filibustered under the nuclear-constitutional option.

Would a GOP rule change monkey with a Senate tradition that's somehow sacrosanct? Hardly. The provision for the Senate filibuster or unlimited debate isn't in the Constitution. And, as Sen. Robert Byrd noted in his history of the Senate, "It is apparent that the Senate in the first Congress disapproved of unlimited debate."

The point here is not to showcase the hypocrisy and inconsistency of Byrd and other Democrats on the filibustering of judicial picks. That's easy enough, but that's all it does—showcase hypocrisy and inconsistency, which some Republicans are guilty of, too. It doesn't address the issue's merits. The point is that Byrd's an expert on Senate history and procedure, and he knows the filibuster wasn't born with the Senate. The first Senate allowed a simple majority to move to a vote by a "calling of the previous question." Not until 1806 did unlimited debate come inadvertently to the Senate when this "previous question" rule was dropped. In 1917, however, the Senate modified unlimited debate to allow cloture votes on pending bills—supermajority votes to end debate and vote on bills.

Yes, the constitutional-nuclear option would change Senate procedures, but that's been done before repeatedly regarding the filibuster. Those changes have come through majority votes and parliamentary rulings. The constitutional-nuclear option itself has been used to change Senate rules, or the threat has led to rule changes, at least four times—by Byrd himself, when the West Virginia Democrat was majority leader.

"Over the years the filibuster has been modified and narrowed ... to advance the country's manifest desires on issues like civil rights," Republican Sen. Gordon Smith said Wednesday. "What this really is now about is whether the Senate has become so dysfunctional when it comes to judicial branch nominations that we now make it impossible to confirm the brightest liberal or conservative thinkers or jurists in America."

The real Sen. Smith from Oregon blames both sides for the problem, but he's rapidly losing patience with Senate Democrats for not reaching out to solve a problem they've escalated. "I've given (Senate Majority Leader Bill Frist) a qualified yes (to the constitutional option), but I never want to cast this vote, because I believe that both sides need to find a way to save face and address this issue ... He needs the leverage because we have a broken system."

It's hard to be optimistic that such solution will happen. In the end, there may be only one way to stop Senate Democrats' bid to amend the Constitution by requiring a supermajority in votes for judicial nominations. That would be the effort to restore the filibuster to its proper place. Having gone to Washington, Mr. Smith may now have to go "constitutional."




 Local Weather 
Search archives:


Copyright © 2024 Express Publishing Inc.   Terms of Use   Privacy Policy
All Rights reserved. Reproduction in whole or in part in any form or medium without express written permission of Express Publishing Inc. is prohibited. 

The Idaho Mountain Express is distributed free to residents and guests throughout the Sun Valley, Idaho resort area community. Subscribers to the Idaho Mountain Express will read these stories and others in this week's issue.