Uphold the filibuster

[JohnnyBz00LS]

Posted on Tue, Apr. 19, 2005

Uphold the filibuster


Government officials sow cynicism and distrust when they seek to overturn a long-standing law or rule because it is preventing them from getting their way. If Senate Republicans proceed with the “nuclear” option and cast a majority vote to no longer recognize filibusters that block judicial nominees, they will rue the day of their success.

At the same time, senators have made the filibuster too easy and should restore the practice of requiring senators who oppose a nominee or piece of legislation to speak on the Senate floor continuously until a vote is cast.

The filibuster is one of the few tools minority parties can use to force compromise. It allows, essentially, 41 senators to block a vote. Democrats hold 44 Senate seats. Budget bills are exempt from the filibuster.

Although Democrats are today’s Senate minority party, Republicans have used the filibuster when they were in the minority and will want to again when they someday lose a majority of the Senate. Republicans should remember that in 1968, the GOP used a filibuster to successfully block President Lyndon Johnson’s nomination of Abe Fortas to be chief justice of the Supreme Court. Then, Republicans were not calling for the “up or down vote” the party now insists is mandatory.

Republicans’ hypocrisy doesn’t stop there. Although the GOP is accusing Democrats of bringing democracy to a halt by holding up President Bush’s nominees to the federal courts, the Senate has approved 205 Bush nominations, meaning Bush has appointed nearly one-fourth of the entire federal judiciary. Democrats have blocked only 10 nominations, giving Bush’s judicial nominees a 95 percent approval rate. Republicans, on the other hand, blocked or defeated 46 of President Clinton’s judicial nominees.

The filibuster is part of the Senate’s tradition to allow unlimited debate. A senator can speak for as long as he or she wishes, and for more than a century, no number of Senate votes could stop him. It wasn’t until 1917 that the Senate changed the rules to allow a limit on debate if two-thirds of the Senate agreed. In 1975, the Senate reduced the number to 60 percent.

In more recent years, though, the two parties have agreed not to force any senator to make long speeches. Instead, if 41 or more senators support a filibuster, the Senate simply doesn’t vote. This destroys the “unlimited debate” theory. More importantly, it reduced the incentive for both sides to at least try to compromise – the minority party so it can finally stop talking, the majority party so it can vote and move on to other issues. If Democrats want to filibuster to block the judicial nominees, they should have that right under the rules – but they should have to actually take to the floor and talk.

When a basketball team has a good outside shooter, the other team cannot change the rules at halftime to ban 3-pointers. If the City Council adopts a measure by a 5-4 vote, the losing side cannot then require a two-thirds majority.

The Republicans supported the Senate’s rule on filibusters when it benefited them. To change the rules now would be arrogant and cynical, something the party would eventually regret.

 

[MonsterMark]

Hey, we'll change the rules now that they benfit us and then change them back when they don't. What's wrong with that?

 

[FreeFaller]

How about we make 'em do pushups while filibustering...stop doing pushups...STF up.

But seriously Johnny...if I was old enough to have not been a stupid kid and be into politics back when the Dems were in control I would probably be on the other side of the fence and vice versa for you. Some of these pricks up on the hill are like little babies who whine when they don't have and try to push every one around when they do. The filibuster is really a double edged sword in that it both hurts and helps our form of government...usually hurts though. I think the underlying problem here is that we allow these Justices to serve life terms on the Supreme Court. Hows about we give em a set term and then thats it...no reelection...just take your old, narrow a$$ back where you came from...thanks for the memories.

Just a thought...

 

[MonsterMark]

Just a thought...

Some good thinkin, I think.

 

[JohnnyBz00LS]

I think the GOP's so-called "political capitol" has gone to their heads. It's about time they've been put into check.

 

[97silverlsc]

Right Wing Power Grab: Frist Voted To Continue A Filibuster Against A Judicial Nominee
by Chris Bowers

One of the main arguments used by Bill Frist and other conservatives about employing the nuclear option to eliminate the filibuster of judicial nominees is that the Democratic use of the filibuster to oppose judicial nominations is unprecedented. He has called the use of the filibuster to oppose judicial nominees dangerous and radical. On his own website, there is a text of a speech he gave to the Federalist Society on November 11, 2004, where he said:
The Senate now faces a choice: either we accept a new and destructive practice, or we act to restore constitutional balance.
Since it will probably be scrubbed from his website shortly, you can also find this speech at several other websites.

Frist isn't the only conservative making this claim. Here is the Traditional Values Coalition from last month:
C. Boyden Gray, Chairman of the Committee for Justice, believes that the liberal's use of the filibuster to block judges violates the "constitutional principle of Separation of Powers. The Constitution grants the Executive primary power over judicial appointments while granting the Senate, as a body--not partisan factions within it--a check via majority vote. By altering that standard, the Senate Democrats are, in effect, arrogating power to the Senate from the Executive."

Gray has published a memo to journalists on the dangerous tactic being used by Senate liberals to usurp power from the Executive branch. In it, he notes that until 1949 it was not even possible to filibuster a nomination. In that year, Rule 22 was expanded to include any "matter" under consideration in the Senate.

According to Gray, the liberal filibuster of judicial nominees "is absolutely unprecedented. Its history is two years old."
This is, simply put, wrong. On March 8, 2000, thirteen Senators, all of whom were Republicans, attempted to filibuster Marsha Berzon for U.S. Circuit judge. You can read the roll call vote right here. Eight of these Seantors are currently in the United States Senate: Allard (CO), Brownback (KS), Bunning (KY), Craig (ID), DeWine (OH), Enzi (WY), Inhofe (OK) and Shelby (AL). None of these eight have expressed opposition to the elimination of judicial filibusters, a practice they themselves once tried to engage in. Later that same day, those same thirteen Senators, in addition to Senator Bill Frist, attempted to filibuster the nomination of Richard Paez to US Circuit Judge. You can read the roll call vote on that one here.

So why are Senators who previously participated in the attempted filibuster of judicial nominees now trying to end the filibuster of judicial nominees while calling such a practice unprecedented, radical and unconstitutional? Orin Hatch wrote about the real conservative complaint in January (emphasis mine):
These are the first filibusters in American history to defeat majority supported judicial nominations. Before the 108th Congress, 13 of the 14 judicial nominations on which the Senate took a cloture vote were confirmed.
Conservatives know that there is a history of attempting to block judicial nominations through the use of the filibuster. They know this because some of them participated in such attempts. Bill Frist participated in one such attempt. What conservatives are really whining about is that the Democratic attempts at filibustering nominees have been successful, while the recent Republican attempts have failed. As Hatch points out, the only thing new about the Democratic efforts at the filibuster is that they have succeed in blocking confirmations. The other attempts tried to do that; they just failed.

For Republicans, the real principle behind the attempt to destroy the filibuster for judicial nominees has nothing to do with the Constitution, it only has to do with winning and losing. It is, in short, a power grab to prevent future defeats. It is a right wing power grab with no other motive except victory, a victory they will do anything to achieve, including call all those who oppose them godless and prejudiced against people of faith.

 

[97silverlsc]

Ending the Filibuster: Democracy vs. Majority Rule
Some people in America are confused between democracy and majority rule - they think the two are the same, but they aren't. Those seeking to end the ability of the Senate to filibuster judicial nominees are helping to perpetuate this error because they argue that any party in the majority should have the right to do as it wishes, irrespective of what the minority party wants.

J.E. Heath offers a concise statement of this position:

We are all in favor of protecting minority rights, but we must also remember that this is a nation founded on the idea of majority rule. If Republicans find themselves in the minority at some point in the future (the distant future, we hope) then they cannot expect to impose their will on the majority. If a party wishes to conduct business their way, then they should have won the previous election. If they did not win the election, it is because they did not have the backing of the American people. Currently, the Republicans hold the majority in the Senate. The President was elected to his office by a majority of the electorate (the first since 1988). It was the will of the people of the United States that the Republicans should hold this power. The people’s will must be respected. The Democrats lost the recent election, and so they are not in power. They should not expect to impose their will upon the people.

Heath doesn't specifically equate "democracy" with "majority rule," but that's the implication when he claims that America was founded on the idea of "majority rule" (we'll ignore for the moment that the Constitution is an anti-majoritarian document). The argument, then, is that whichever party is in the majority must have a mandate from the people to act and any concessions to minority interests would be allowing the minority to "impose its will" on the majority.

In his book First Democracy, Paul Woodruff examines the nature of the original Athenian democracy experiment in order to see what lessons we can derive from it for our own democratic experiments. At the outset, he contrasts democracy with "doubles" of democracy — systems that look like democracy but are not. One is "Majority Rule" and he offers the following story to illustrate how it operates:

For one side in the English department, it's the last straw. For the other, it looks like total victory. The neocolonial party has won a string of victories that now promises to extend as far as anyone can foresee; they outnumber the traditionalists, and they now have powers that will help them keep their numbers high. In the excitement of victory, they see no reason why they should restrain themselves. They clear the traditionalists out of all the important committees, so that nothing will obstruct or delay their agenda.

Members of the defeated faction are aghast when they hear of the new committee assignments. They have been shut out of every thing that matters. ... One, who has the dean's secret ear, will try to bring him over to their side and block all future neocolonial appointments. Another is well connected enough to engage powerful and wealthy alumni in the fight.

Soon the plot is uncovered, and the outraged chair confronts the dissidents. "Why have yo done this? You are tearing the department apart. Can't you live with democracy? Majority rule — that's democracy, isn't it? In democracy you have to accept defeat if you are in the minority."

"If this is democracy," asks one of the rebels, "Why does it feel so much like tyranny? There has to be a difference between democracy and what you are doing to exclude us from all the workings of our department."

Does any of this sound familiar? I suppose Woodruff wrote it before the recent moves to end the Senate filibuster became prominent, but even so it's implausible that he didn't have some recent Republican activities in mind. He specifically references the way in which majority parties redraw congressional districts in order to make them "safe" for one side or the other as an example of a failure of democracy. One side is put into a permanent minority status that isn't represented and, because the candidates for the other side must continually fight for votes from the extremes, isn't even given any consideration. For them, this "democracy" feels more like "tyranny."

Woodruff explains that tyranny could occur even in democratic Athens:

A popular group of leaders, who could rely on winning votes in the Assembly, would exclude all political interests other than their own from serious discussion.

Woodruff offers these symptoms of tyranny:

* A tyrant is afraid of losing his position, and his decisions are affected by this fear.
* A tyrant tries to rise above the rule of law, though he may give lip service to the law
* A tyrant does not accept criticism.
* A tyrant cannot be called to account for his actions.
* A tyrant does not listen to advice from those who do not curry favor with him, even though they may be his friends.
* A tyrant tries to prevent those who disagree with him from participating in politics.

All of these attributes can occur in the context of a single tyrannical ruler or in the context of a tyrannical majority group. What's important is not the numbers of those involved but their disregard for principles of law and for working in harmony with others.

Woodruff explains why a tyranny of the majority, also known as "mob rule," can be such a problem:

Mob rule is plainly a kind of tyranny; it frightens and excludes and puts the minority under the absolute power of the majority. And the tyranny of the majority kills freedom as dead as any other form of tyranny. It's not freedom if you have to join the majority in order to feel that you are free.

Defenders of democracy say that it puts restraints on the power of majorities, primarily the rule of law. If the majority rises above the law, it is playing the part of tyrant. Also, in the interests of harmony, most democracies have devised practical methods of ensuring that the interests of minorities are not trampled.

The effect of rule by a majority party is rarely democratic, whatever ideals the party claims to represent. When majority rule is absolute, as it is in safe voting districts, the party is able to keep many interests and issues out of discussion.

The authors of the Constitution used Athenian democracy as a model, but they were also eager to avoid what they saw as some of the failings of that democracy. One of those was the ability of certain interests groups — including majority parties — to seize power and rule in an absolute, tyrannical manner. Thus the Constitution was crafted to restrict or thwart majority power as much as possible while still remaining democracy.

The filibuster is just such a feature, even though it is part of Senate traditions rather than the Constitutional text. The filibuster is a means for the minority to prevent a majority from doing whatever it wants. The filibuster is a means for a minority (but not a tiny minority — they have to comprise 40% of the Senate, which is not an irrelevant number) to force its interests into the discussion. In order to avoid a filibuster, the majority must learn to work in harmony with the minority — the majority must learn to work with rather than rule over.

That may be one of the most fundamental differences between democracies and tyrannies: in a democracy, groups work with each other; in a tyranny, one group rules over the others. In America today, which is more descriptive of what is happening? Is the Republican party genuinely seeking to work with others or seeking ways to rule over others?

And does anyone really think it matters? Some, like J.E. Heath, don't seem to. Those who agree with his comments will say that it's appropriate for the majority group to rule over others — if you don't get a majority of votes, you don't matter. Is that democracy?

No, it only seems that way to people who don't know what they are talking about. Democracy is not merely the process of voting or "majority rules." The purpose of Paul Woodruff's book is to explain how and why this is so because these are common errors.