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Defending the Filibuster

George Will defends the Senate's filibuster rule in his Newsweek column.

The filibuster is an important defense of minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the governmental juggernaut. Conservatives, who do not think government is sufficiently inhibited, should cherish this blocking mechanism. And someone should puncture Republicans' current triumphalism by reminding them that someday they will again be in the minority.

The promiscuous use of filibusters, against policies as well as nominees, has trivialized the tactic. But filibusters do not forever deflect the path of democratic government. Try to name anything significant that an American majority has desired, strongly and protractedly, but has not received because of a filibuster. Which brings us to the pertinence of this year's politics.

A senior White House official says the president believes that his emphasis on Democratic obstruction of judicial confirmations is one of the main reasons for Republican gains in this year's Senate elections. If so, the political solution to what is a political problem is working.

The president should renominate all 10 appellate-court nominees who have been filibustered, and he should vow, like General Grant, to "fight it out on this line, if it takes all summer." Norman Ornstein, a student of these things, says Senate Republicans could force Democrats to conduct the kind of filibuster Southern Democrats conducted against civil-rights legislation in the 1950stalking around the clock, the obstructionists and their opponents sleeping on cots in the Capitol, the Senate paralyzed. There has never been such a spectacle in the era of C-Span and saturation journalism on cable 24 hours a day. Do Democrats want to make 2005 the year of living dangerously? Seventeen of their 44 seats are at risk in 2006five of them in states Bush just carried.

James Joyner of Outside the Beltway disagrees:

Will's argument has merit and his plan for fighting it out would be wonderful political theater. That said, I disagree. The Constitution already puts numerous hurdles in the way of a thin, overzealous majority: bicameralism, staggered Senate terms, representation of states rather than population in the Senate, and the veto are just the most obvious examples. Judicial review, itself extra-constitutional, is yet another barrier to encroachment by the majority on the rights of a minority.

The filibuster, while now steeped in tradition, is not a part of the Constitution. Used as a last resort on the most controversial issues of the day, it was tolerable. Now that it has become a routine tool of the minority, though, it turns our system on its head. President Bush has been elected twice and Republicans have had majorities in both Houses of Congress after each of the last six elections. At some point, they should be allowed to govern.

Both arguments have merit and James makes a stronger case than I probably could have, but at the end of the day, the Republicans should leave the rule alone.

One of the reasons I'm a passionate conservative who spends more hours than he should preaching the gospel of Republicanism is that I have been routinely annoyed and downright offended at the Democrat party wanting to change the rules, not to make the country better, but to allow them to gain power.

How can Republicans complain about Democrats wanting to change the rules after elections are run in Florida if we pull similar (if not perfectly analogous) stuns in the Senate?

The behavior of the Democrats over Bush's judicial nominations has been appallingly childish and frankly, quite egregious but that does not give Republicans license to behave poorly. The proper response is, not to change the rules of the Senate, but to subject the Democrats to public humiliation. When Gore sued to throw out the military vote, I declared the battle in Florida over. When you give away the moral high-ground for political gain, the American people will abandon you.

Ironically, James lays out the perfect reason to make the Democrats actually hold an around the clock filibuster. "President Bush has been elected twice and Republicans have had majorities in both Houses of Congress after each of the last six elections. At some point, they should be allowed to govern."

That is the line the Republicans should take to the American people. It's a win-win for Republicans. They'll get their nominees thru, keep the moral high-ground and pick up a few more Senate seats as a bonus prize. Who could ask for anything more?


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Comments (14)

Heh, Rudy Guliani could ask... (Below threshold)
Henry:

Heh, Rudy Guliani could ask for more

RUDY 2008!!!

Hah ^.^

Kevin’s and James’s defense... (Below threshold)

Kevin’s and James’s defense citing democratic shenanigans conveniently ignores the fact that When the shoe was on the other foot, Clinton had to contend with the blue slip rules which the Republicans already have done away with. Also the idea that the Republican are not being “allowed to govern” is patently a bunch of banana oil. I they are really concerned about judicial slots being filled then they should do what the democrats had to do during Clinton, nominate judges that are a tad more moderate. They don’t have to be flaming moon-bats, but the fact is that the far right judges that are being nominated do not reflect the whishes of an electorate that is divided by a few % points.

Also be careful what you whish for, because if he democrats get the White House back, all of those rules that would protect a significant minority will be gone and the president will be able to get judges confirmed who are as far to the left and Bush’s nominees are to the right, and that is saying a lot.

My own suggestion is that t... (Below threshold)

My own suggestion is that the Honorable whatsises in Washington should do whatever they want to. But they should also remember that when the other side is in the majority they'll do the same thing to them. And then some.

fil·i·bus·ter ( P ) Pro... (Below threshold)
andre3000:

fil·i·bus·ter ( P ) Pronunciation Key (fl-bstr)
n.

1. The use of obstructionist tactics, especially prolonged speechmaking, for the purpose of delaying legislative action.

2. A rodeo rider specializing in the breaking of female horses.

3. An adventurer who engages in a private military action in a foreign country.

Changing the Senate rules, ... (Below threshold)
Jon:

Changing the Senate rules, a.k.a. The Nuclear Option, is the ultimate last resort. Preserving the filibuster is a good idea. Someday we'll be in the minority again. I hope I'm dead by the time that happens, but it will happen someday. Keeping it is a good idea, even for judicial nominees. But, make it a real filibuster. The Weekly Standard has had a number of articles about this.

In this congress we had 51 Republicans in the Senate. That is a VERY slim majority. In the next Congress, we will have 55 Republicans, a much more comfortable working majority. Plus, we will have a minority hopefully a bit chastened, and with members afraid of being Daschled in 2006. In this Congress, the Dems would say, "we're going to filibuster this", and that would be it. The Republicans would move on to another topic. They had little choice. To invoke cloture and break the filibuster, they had to have every single Republican there and voting "aye", plus up to NINE Democrats. The Democrats didn't even need all their members to show up to maintain the filibuster, plus they could loose a few votes from Dems worried about reelection. In the next Congress, they face a much more difficult task. If they loose five votes, they loose the filibuster. That means that they'll all have to show up and stay there the whole time. There's probably a couple of Dems that will flip when the heat is on, especially if they are worried about reelection. There's a couple of Dems who have never supported this filibuster strategy, and probably several more who are much more squishy about it after the drubbing they just took at the polls. Once their feet is really held to the fire, they'll have a tough time keeping 40 votes to sustain the filibuster.

So here's the strategy: first big nomination, probably after Rehnquist steps down, the Dems are on notice. Hold the Senate in session 18, 20, 24 hours a day, seven days a week, until they are willing to vote. No switching topics, no going home, you wanna filibuster, then you filibuster. If that goes on for a few weeks, a few Dems are going to get weak in the knees, and one or two will probably tell their leaders where to stuff it and go home. And just like that, no more filibuster. And then you tell them, we're going to do this for EVERY judicial nominee until 2006.

The reason Clinton did that... (Below threshold)
Henry:

The reason Clinton did that was because he himself was a political moderate. (His wife, on the other hand is a socialist). During Clinton's second term, his real policies showed through (because he wasn't worried about re-election), he was still on the left side, but he was definitely more of a moderate Democrat.

I say its high time that the Government should be finally able to do SOMETHING without having to cater to obstinate obstructionalists (cause the huge beaurocracy that is our federal government already works slow enough as it is).

I should think long-term th... (Below threshold)
plunge:

I should think long-term thinking conservatives should be FAR more bothered by the Republican dismantling of all the Senate checks and balances that _Republicans_ originally fought for and defended with some very high-minded arguments. This isn't just the filibuster, but also a whole litany of traditions and protections like the blue-slips and so forth. To hear fellow conservatives crying about how its hard to get things done in a divided government is just bizarre. Bizarre. Have we no memory? Conservatives can get things done without turning their values and arguments over the last 20 years into a laughingstock.

"His wife, on the other hand is a socialist"

Look, you DO want people to take your opinions seriously, right? Then why do you SAY things this stupid. I can't stand Hillary, but she's by all rights a fairly conservative Democrat. Both Clintons were have been a huge disappointment to those on the left.

""His wife, on the other... (Below threshold)
Jon:

""His wife, on the other hand is a socialist"

Look, you DO want people to take your opinions seriously, right? Then why do you SAY things this stupid. I can't stand Hillary, but she's by all rights a fairly conservative Democrat. Both Clintons were have been a huge disappointment to those on the left."

There's nothing stupid about calling Hillary a socialist. Hillary has been a fairly MODERATE democrat since being elected to the Senate. Calling her "fairly conservative" is simply wrong. There are many reasons to believe that she is far, far more liberal than her current voting record and her recent public statements would lead one to believe. She is "keeping her head down" in anticipation of a possible white house run. Were she to ever give up any ambitions for highler office there are many reasons to believe she would "pull a Ted Kennedy" and shift to the far left, as Ol' Teddy did after his failed 1980 run for the White house.

Bill and Hillary are smart politicians. One might add, "with hearts as black as sackcloth", or however that phrase goes. What they actually believe and the policies they espouse and promote are two different things. In her heart of hearts, Hillary is a hard leftist, and has been since her college years. Bill was only as moderate as he was so that he could get elected. But, whether politicians should actually believe in the policies they put forth is another issue entirely. Do it really matter what they guy believes if you agree with everything he does? I believe it does matter, after all, I can't watch him every second.

You might want to check out... (Below threshold)

You might want to check out Beldar Blog's discussion of this. I started out leaning against changing the rules, but as a libertarian and strict constructionist, his points have serious merit.

Do it really matter what... (Below threshold)

Do it really matter what they guy believes if you agree with everything he does? I believe it does matter, after all, I can't watch him every second."

Than you Jon. Well said. I can't seem to get some people to understand that.

The filibuster is inherentl... (Below threshold)

The filibuster is inherently an unfair, abusive practice that impedes the operation of the Constitution. The Constitution establishes the lawful limits of government-- for the Senate to tolerate filibusters amounts to ceding power not granted by the Constitution to small minorities. It turns democracy and republicatn government on its head. It institutionalizes political trepidity.

If the filibuster is the r... (Below threshold)
2Hotel9:

If the filibuster is the rule, then we should force the practitioners thereof to actually filibuster. Republicans are so terrified of looking like they are using the bully pulpit that they collapse at the very mention of a filibuster. Well, BULLOCKS, lock the doors and make the fools hang themselves with the image of them acting like 1st graders having a tantrum over a cookie! And not just the Dems. If you have the courage of your convictions then you will stand and fight, as soon as anyone utters the word slam the doors and let the verbiage fly!!!!! Just my opinion, and we all know the old saw about opinions.

"The filibuster is inher... (Below threshold)
Jon:

"The filibuster is inherently an unfair, abusive practice that impedes the operation of the Constitution. The Constitution establishes the lawful limits of government-- for the Senate to tolerate filibusters amounts to ceding power not granted by the Constitution to small minorities. It turns democracy and republicatn government on its head. It institutionalizes political trepidity."

Somebody may help me out here, but I believe that the constitution mandates that each chamber writes it's own rules. If it's not actually in the constitution, then there are laws in place to that effect. Each chamber is self-governing, and is very particular about attending to its own business. They are not overseen by either the courts or the president. So with the Senate both making and following its own rules, the filibuster cannot be unconstitutional. Unjust, undemocratic, unethical, unwise, etc. maybe, but unconstitutional no.

Senate rules have been evolving for the last 200+ years. The senate has a decades' or maybe centuries' old tradition of "unlimited debate". The filibuster springs from this. The rule is that you have to have 60 votes to limit debate. So far as I know, there is nothing actually in the rules about "filibustering". But, it is a sort of extra-legal practice that has developed. When we were in the minority, it was one of the only things we had, and we used it to good effect on occasion. The problem is that it has become too easy, and as a result used much more frequently. The way it has gotten lately, all the minority needs to do is SAY they're going to filibuster and the Republicans change the subject and move on to something else. Well, that's a load of crap. Whoever has a majority has enormous control. The majority decides what commitees there will be, who will be on them, who will be chairmen, how much money they will get, how much money Senators get for their offices and staffs, and the majority controls the schedule. So all that has to happen is for one day the Republicans tell the Democrats, "listen we want to get this very important nomination though the Senate, and we think this is so important we're gonna work from 7am to 2am every day until we get a vote on this. So you guys get up there and start talking, because if you stop, then we're going to have a vote. Oh, and by the way, we're going to call for a cloture vote (to end debate and proceed to vote on the issue at hand) a couple of times a day and any time we think we can get 3/5 of those present to support it, so if you want to keep filibustering, you probably want to keep all your guys here. And if you guys are still stalling a week from now, then next week we'll start working 24 hours a day until we get a vote on this." That's putting their feet to the fire. If the minority feels strongly about it, then make 'em prove it. That's playing it tough. You want to play it a little softer, just hold the Senate open 16, 14, 12 hours a day, but you stay on that issue, and you keep debating it until you get a vote. Whoever flinches first wins, and we have 10 more votes than they do.

You don't have to do that every time, but doing it even once or several times would be very helpful in breaking the logjam. Once they know you're serious and they have to really work for it, they'll use it less often.

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