7.05.2005

Filibuster: Pro & Con

As promised, here are the arguments from progressives and conservatives for and against keeping the filibuster.


Conservative Argument For Allowing Filibuster
Site—Townhall
The filibuster
George Will (archive)
March 20, 2005

WASHINGTON -- With Republicans inclined to change Senate rules to make filibusters of judicial nominees impossible, Democrats have recklessly given Republicans an additional incentive to do so. It is a redundant incentive because Republicans think -- mistakenly -- that they have sufficient constitutional reasons for doing so.

Today 60 Senate votes are required to end a filibuster. There are 55 Republican senators but not five Democrats who will join them. Republicans may seek a ruling from the chair -- Vice President Cheney presiding -- that filibustering judicial nominees is impermissible, a ruling that a simple majority of senators could enforce.

Democrats say they will retaliate by bringing the Senate to a virtual halt -- easily done within Senate rules. Republicans rejoice that such obstructionism would injure the Democrats. But conservatives will come to rue the injury done to their cause by the rule change and by their reasoning to justify it.

Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.

Some conservatives say the Constitution's framers ``knew what supermajorities they wanted'' -- the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc. -- therefore other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress ``may determine the rules of its proceedings.''

Some conservatives say there is a ``constitutional right'' to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.

Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms -- separation of powers, bicameral legislature, etc. The filibuster is one such mechanism -- an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.

The crucial, albeit unwritten, rule regarding judicial nominees was changed forever 18 years ago by the Bork confirmation fight: Now both sides in the Senate feel free to judge and accept or reject nominees on the basis of their judicial philosophies. So, conservatives, think:

The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?

And pruning the filibuster in the name of majority rule would sharpen a scythe that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations -- and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?

Exempting judicial nominations from filibusters will enlarge presidential power. There has been much enlargement related to national security -- presidential war-making power is now unfettered, Congress' responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?

The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the last 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.


Progressive Argument For Allowing Filibuster
Site—The Nation
Editorial | posted April 7, 2005 (April 25, 2005 issue)
Legislative Bomb

Seventy-four percent of Americans surveyed by CBS News said Congress intervened in the Terri Schiavo right-to-die case to advance a political agenda, not because they cared what happened to the Florida woman whose last days took center ring in a grotesque national media circus. The people called it accurately, as right-wingers on Capitol Hill confirmed with incendiary reactions to Schiavo's death. "The time will come for the men responsible for this to answer for their behavior,'' snarled House majority leader Tom DeLay; GOP Senator John Cornyn wondered aloud on the Senate floor whether there was a connection between the "perception" that judges are making political decisions and the fact that "some people...engage in violence." Both DeLay and Cornyn took some appropriate hits for playing to the worst instincts of a country where in recent months judges and their families have been the targets of violence. But few in Washington were confused about the meaning of DeLay's warning: While he might muse about impeaching federal jurists, his real passion is for removing barriers to the Bush Administration's campaign to pack the courts with right-wing judicial activists.

DeLay has made no secret of his desire to "go nuclear" in the fight over judicial nominations, and Senate majority leader Bill Frist, another Schiavo interventionist, shares his enthusiasm for blowing up the rules that allow a minority of senators to use a filibuster--best understood as the unlimited extension of debate--to block controversial judicial nominations. During Bush's first term, when the Senate flipped back and forth between Republican and Democratic control, Democrats managed to derail ten of the Administration's 229 nominees for federal judgeships--in Judiciary Committee votes when the Democrats controlled the committee and later, when Republicans took charge, with filibusters. Among those blocked were Bush's most extreme picks for federal appeals court benches in the West and South, such as California Supreme Court Justice Janice Brown, who argues that the First Amendment permits corporations to make false or misleading representations without legal ramifications, and Texas Supreme Court Justice Priscilla Owen, whose moves to undermine protections for women seeking abortions were so radical that another justice, right-winger Alberto Gonzales (now US Attorney General), decried them as an "unconscionable act of judicial activism."

With Republicans more firmly in control of the Senate after the 2004 elections, Bush has resubmitted the names of Brown, Owen and five more blocked nominees. Even with the Senate split fifty-five to forty-five, Democrats still have the forty votes needed to maintain a filibuster. But Republican leaders in the Senate, including Frist, are so determined to satisfy the Administration and their party's social conservative base that they have signaled their willingness to invoke the "nuclear option" of radically rewriting the Senate's rules to make filibusters of judicial nominees virtually impossible. So the fight is on, not just to save a Senate rule but to maintain this country's already compromised system of checks and balances on executive and legislative overreach.

The filibuster takes its name from the Dutch word for "pirate," and it has long been associated with a buccaneering approach to the legislative process. Dissident minority senators have historically tossed the final roadblock of the filibuster in the way of nominations or laws they could not prevent in any other manner. As with most tools, the filibuster can be used for good or ill. For every Paul Wellstone filibustering to block a corrupt bankruptcy "reform," there was a Strom Thurmond filibustering to slow the civil rights movement. Unlimited debate was allowed until 1917, when President Wilson, worried about the prospect of antiwar senators like Robert La Follette using the filibuster to challenge his rush to enter World War I, prevailed upon the Senate to adopt a rule allowing two-thirds of senators to vote to end a filibuster. In 1975 the ratio was modified to three-fifths, or sixty votes, where it has remained. But there has rarely been serious discussion about eliminating the filibuster until now.

If the nuclear option is invoked, Congress will become an altered branch of government. In the absence of rules that require the consideration of minority views and values, the Senate will become little different from the House, where the party out of power is reduced almost to observer status. That's why Robert Byrd, dean of the Senate and the most ardent champion of the chamber's rules, called the nuclear option "a legislative bomb that threatens the rights to dissent, to unlimited debate and to freedom of speech."

The nuclear option could take a variety of forms. Under the most likely scenario, Vice President Cheney, president of the Senate, would rule that filibusters against judicial nominees are unconstitutional. If a bare majority of the Senate upheld the move, such filibusters would for all practical purposes be eliminated, and only fifty-one votes would be needed to approve a nominee. Democrats would effectively lose their last tool for blocking Bush choices not just for the lower courts but also for the Supreme Court seats that are all but certain to open before his term ends.

If the filibuster survives in its current form, Democrats will be credited with a significant legislative victory--keeping the process open for the Supreme Court nomination fights, during which the GOP would have a hard time changing the rules. But there aren't enough Democratic senators to prevent Frist & Co. from going nuclear. The "no nukes" camp must be expanded to include at least a handful of Republicans. It makes sense to begin with the GOP's dwindling circle of moderates: Maine's Susan Collins and Olympia Snowe, Rhode Island's Lincoln Chafee, Pennsylvania's Arlen Specter, Indiana's Richard Lugar. If ever there was a time when thinking Republicans needed to separate themselves from their party's jihadist wing, this is it. But it makes just as much sense to pressure conscientious conservatives. Already two former GOP senators with pristine conservative pedigrees, James McClure of Idaho and Malcolm Wallop of Wyoming, have argued in a Wall Street Journal op-ed that going the nuclear route could mean the end of the Senate as "a continuing body with continuing rules."

While Frist and his allies claim they only want to change the rules for consideration of judicial nominations, McClure and Wallop argue that "it is naïve to think that what is done to the judicial filibuster will not later be done to its legislative counterpart." They add, "Without the possibility of a filibuster, a future majority leader could bring up objectionable international commitments with only an hour or two for debate, hardly enough time for opponents to inform the public and rally the citizenry against ratification."

The abuses that McClure and Wallop fear ought not to be the concern merely of Democrats and retired Republican senators; current GOP senators who presume to speak for more than the narrowest and most partisan wing of their party--people like Arizona Senator John McCain--have a responsibility to speak up. That is most likely to happen if they hear a loud call along the following lines from their constituents: This is not an issue of Republican versus Democrat, nor even liberal versus conservative; this is a moment when we decide whether this country will remain a democracy in which those who govern must play by the rules, or will become a winner-take-all system where the gravest fear of the founders--tyranny of the majority--will be the lasting legacy of George W. Bush, Tom DeLay and Bill Frist.


Conservative Argument to Repeal The Filibuster
Site—National Review
March 21, 2005, Monday
SECTION: National Review Online
HEADLINE: Will on Filibusters
BYLINE: By Mark R. Levin
In his Sunday column, George Will makes his most comprehensive argument yet against Senate Republicans' modifying the filibuster rule to prevent its use against judicial nominees. I respond to some of his major points below.

Will writes: Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.

Of course, this begs the question. If a majority of the senators decide that they want to change one of their rules to prevent the filibustering of judicial candidates, then the Senate is, as Will puts it, "completing the staffing process that the president initiates." Nobody is denying the Senate's role, just what it's doing with that role, and its impact on presidential as well as senatorial powers.

Will writes: Some conservatives say the Constitution's framers "knew what supermajorities they wanted"--the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress "may determine the rules of its proceedings."

Actually, Will conflates two points here. The Constitution is a governing document that attempts to lay out the powers of the various branches and levels of government. It stands originalism and limited government on its head to argue that where the Constitution is silent, the federal government (including the Senate) is free to act. Will seems to have adopted Sen. Joe Biden's position, or worse. When Biden (D., Del.) was asked if he'd support Justice Antonin Scalia for Chief Justice, Biden responded that he could not, as Scalia doesn't believe in the Constitution's "unenumerated powers."

The Constitution is silent about a lot of things, such as abortion and same-sex marriage. To argue that its silence is not limiting assumes it's not limiting to any branch of the federal government, including the judiciary. In fact, the Constitution says very little about the power of the judiciary, and its silence has been used by judicial activists to set policy throughout our society. Here, the Senate minority's conduct is actually worse than exercising an "unenumerated power." It is affirmatively denying the full Senate the opportunity to exercise an enumerated power--its advice-and-consent function. If the majority party in the Senate does not wish to exercise that power, it's not compelled to do so. But if it does wish to exercise that power, which is the present case, then the majority can change the rule by which the minority is thwarting the majority, i.e., the filibuster rule.

As to the second point--that the Constitution's authorizing the Senate to set its own internal rules empowers the Senate to impose a supermajority requirement on itself--this has always seemed an odd argument to me. What would Will say, I wonder, if the Senate adopted rules that conflict with some explicit provision of the Constitution? If I follow his logic, the Senate's power to set its own rules, whatever the rules, is given as much weight as explicit constitutional provisions. In any event, if the Senate majority believes the minority's imposition of a supermajority violates the Constitution, and then acts to change the rule, in the end that's all that matters.

Will writes: Some conservatives say there is a "constitutional right" to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.

There is certainly no requirement that the full Senate vote on any nominee. I suppose there's no requirement that the Senate conduct business of any kind. I don't know where this gets us. However, if the majority wants to exercise its constitutional authority, and is prevented by the minority, it seems obvious that the Senate majority is being denied the right to perform its constitutional function. It need not cooperate with the minority's political objective. That's the entire point. That's why the demands for modifying the filibuster rule. This is a right (or power) that belongs to the Senate majority, which speaks for the Senate.

Will writes: Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms -- separation of powers, bicameral legislature, etc. The filibuster is one such mechanism -- an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.

Some conservatives, like me, are more interested in discerning actual constitutional powers than arguing for "minority assertion." As Will writes, the Constitution explicitly provides for separation of powers, a bicameral legislature, etc. It is a document of enumerated authorities. The Framers' main concern was with the concentration of power in the hands of a few people or entities. Hence, divided government, in which each branch jealously guards its own power. The filibuster has nothing to do with this. Moreover, while the filibuster is used by a minority to slow or thwart a majority, Will's argument assumes that the minority is the group attempting to "slow or stop government." In fact, it is the minority, as the Senate is presently configured, which seeks to expand the power of government by preventing the confirmation of originalist judicial candidates. And, when instituted by the current minority in the legislative context, it would be used to prevent spending and tax cuts, both of which limit government.

Indeed, throughout this debate, the advocates of the filibuster have succeeded in portraying it as a great deliberative tool that has been used for good--such as stopping a misguided majority. My guess is it has been used for good and bad, but I've yet to see its defenders present any careful and comprehensive analysis of its use over history. Therefore, we need not accept Will's contention on face value. I do recall the filibuster was used, albeit unsuccessfully, by segregationists like Senator Robert Byrd to try to stop the passage of civil-rights legislation.

Will writes: How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?

This question assumes too much. First, I can't imagine any nominee, including the most activist candidate, testifying that he supports a constitutional right to same-sex marriage. We've witnessed enough such hearings to know that nominees won't say such things for a variety of reasons. Second, I can't imagine any president nominating a candidate who had a record of supporting same-sex marriage. Third, it can just as easily be argued that the Democrat filibuster is preventing candidates who oppose same-sex marriage from ascending to the federal bench. The argument against filibustering judicial candidates, from the perspective of those of us who believe it's unconstitutional, has nothing to do with any particular or potential judicial ruling and outcome.

Will writes: And pruning the filibuster in the name of majority rule would sharpen the shears that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations--and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?

The Panama Canal Treaty is a perplexing example as it proves the opposite of Will's point. It was ratified by a two-thirds vote of the Senate, as the Constitution requires. And since a two-thirds vote would have been enough to defeat a filibuster, what's the point here?

Of course Senate Democrats, regaining the majority, might end the rule even as used against legislation. They might do any of 100 things. But I await the evidence from the filibusters' proponents that even eliminating the rule entirely would result in unwelcome consequences. I note that the House of Representatives operates without a filibuster rule.

Will writes: Exempting judicial nominations from filibusters would enlarge presidential power. There has been much enlargement related to national security--presidential war-making power is now unfettered, Congress's responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?

The president's power wouldn't be enlarged. Until this president's election, no president has faced filibusters, or threatened filibusters, against ten of his nominees, with more to come. We're talking about returning power to the presidency that existed for all but four years of our history--prior to the election in 2000 of George Bush. As for presidential war-making power, which has nothing at all to do with the filibuster debate, Congress still retains the power to cut off funding for any war, as it did in Vietnam. As for Congress declaring war, the Constitution is silent on exactly how Congress is to make such a declaration. Respecting the Iraq war, Congress adopted a joint resolution authorizing the president, on his own discretion, to make war. I see no substantive difference between a declaration and resolution in this regard. Apparently neither did Congress.

Will writes: The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the past 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.

Of course, if the Republicans elect 60, 65, or 70 senators, they can defeat the filibuster. And if they do so each election cycle, then the minority will be too small to conduct filibusters. But what happened to Will's point about the importance of "minority assertion"? Is it only important when the minority consists of, say, 41 senators, the current number needed to conduct a filibuster? And why is that? Early in the Senate's history, a single senator could conduct a filibuster and block the Senate's business. Now, that was true "minority assertion."

The problem today is a systemic one, i.e., the misuse of a Senate rule to block judicial nominees from receiving the consent (or rejection) of the full Senate. Each of these candidates reportedly has enough votes for confirmation, but for the unprecedented use or threat of filibusters. The majority has every right and reason to change the rule.


Progressive Argument to Repeal The Filibuster
Site—Salon
Dump the filibuster!
How I learned to stop worrying and love the nuclear option.
- - - - - - - - - - - -
By Farhad Manjoo

May 20, 2005 | Let's start by acknowledging the obvious: The nuclear option is unprincipled. There's nothing commendable about the Republicans' attempt to steamroll the slightest opposition to their authority, and you can't have much respect for a team that wants to illegally change the rules in the middle of the game.

Now that we have that out of the way, here's an idea to consider: Republicans may not be wrong to want to eliminate the filibuster, and Democrats have nothing to lose by letting the GOP win this one. The filibuster is, after all, one of the more anti-democratic parliamentary maneuvers in the federal government's most undemocratic body, the Senate. A tactic not envisioned by the founders, and most famously used by Southern racists to frustrate the passage of civil rights legislation, the filibuster doesn't exactly have a savory tradition.

More than that, the filibuster is no friend to Democrats, whose policies, if not politicians, appeal to a majority of the American public. They may be in the minority now, but Democrats can win again. They can take the Senate and they can take the White House, possibly both, possibly soon. When that day comes, you can be sure Republicans will use the filibuster in the same way that Democrats are using it today. Wouldn't it make sense to take that option away from the GOP now, when they're agitating for the change -- and then, in the future, to hoist them with their own petard?

The problem with the filibuster stems from the problem with the Senate, which gives every state two representatives, regardless of population. In the Senate, the two Republican members from the nation's smallest state -- Wyoming, with a population of less than 500,000 -- often cancel out the wishes of the two Democratic senators from the nation's largest state, California, with almost 34 million people, 68 times the number in Wyoming. The filibuster, which allows any member to keep debating an issue unless there are 60 members willing to stop him, exacerbates the undemocratic nature of the Senate. If everything in the Senate must meet with the approval of at least 40 senators in order to receive the blessing of the body, technically a very small minority of Americans can obstruct the will of the majority. The 40 senators from the 20 least populous states represent only 29 million people. In other words, the filibuster gives a tenth of the nation's population the power to veto the will of the other 90 percent.

Speaking on the floor of the Senate in the past couple of days, Democrats have argued that this is the way it was meant to be. The founders, who wanted to prevent a popular majority from tyrannizing a minority, thought of the Senate as a body that would cool the passions of the population, Democrats say. That may be so, but it's not true that the founders wanted to give small numbers of senators the right to frustrate the rest of the body through endless debate. "The very fact that the filibuster exists is a historical accident," says Frances Lee, a political scientist at the University of Maryland and a coauthor of "Sizing Up the Senate: The Unequal Consequences of Equal State Representation." The filibuster was created in 1806 when the Senate changed its rules and failed, more or less by accident, to include a provision to limit debate; Rule 22, which required two-thirds of the Senate to agree to limit any debate, was adopted more than a hundred years later, in 1917. In 1975 the number of senators required to invoke "cloture" on debate was reduced to three-fifths of the Senate, or 60 votes.

Which party does the filibuster benefit? Support for a particular parliamentary rule depends, Lee notes, on whose ox is being gored. At the moment the filibuster is a tool for liberals, who've used it to block President Bush's judicial nominees. In the past, it's been used effectively by conservatives. Strom Thurmond spoke for a record 24 hours and 18 minutes against the Civil Rights Act of 1957. FactCheck.org notes that the last senator to filibuster the Civil Rights Act of 1964 was Democrat Robert Byrd of West Virginia, "who spoke for 14 hours and 13 minutes, finishing the morning of June 10 -- the 57th day of debate on the measure."

There is an argument to be made, however, that over the long term, the filibuster might be more a hindrance than a help to Democrats, and that therefore it might be in their interest to get rid of the judicial filibuster now -- and to welcome any further weakening on legislative filibusters that the move may prompt. One way to look at this question is philosophically. The filibuster, writes the American Enterprise Institute's Norman Ornstein, is a conservative tool -- "it delays government action in order to overcome intense minority opposition and to build broader popular support." Liberalism is an activist pursuit; to get things done -- things like passing civil rights reforms -- you need to change the status quo. Conservatism, by contrast, favors the status quo and, therefore, makes better use of the filibuster.

That philosophy may not match today's reality. Frances Lee points out that today it's Republicans who want to get things done -- they want big changes on foreign policy, domestic policy, and judges -- and Democrats who are playing defense. But are Democrats always going to be in the minority and on defense, rather than offense? Slate's Timothy Noah, a longtime liberal objector to the filibuster, has noted that "in grooving on the filibuster, Democrats show that they are unwilling to consider" a future in which they might be back in power again.

You may say there's only a small chance that Democrats will win the Senate in 2006 and the presidency in 2008, and that therefore, they should fight to keep alive what little power they have. Today, there are 44 Democrats in the Senate, and 55 Republicans. (One member, Vermont's Jim Jeffords, is independent.) Indeed Sen. Harry Reid, the Democratic leader, recently said it would take a "miracle" for the Democrats to win a majority in 2006. He may be right. But it's also true that however slim the chances are of Democrats' winning 51 Senate seats, they're a lot better than the possibility of their winning 60 seats. And by fighting for the filibuster now, Democrats are essentially allowing Republicans to veto future Democratic federal judges unless the Democrats meet the 60-vote requirement.

If Democrats were acting in their best long-term interest, they wouldn't want to give 40 Republican senators the right to block their actions -- because Republicans in the Senate generally come from smaller states, and therefore generally represent many fewer people than do Democrats. If you consider that every senator represents half the number of people in his or her state, then the 40 Republican senators from the smallest states represent only 56 million Americans -- 20 percent of the population. The 40 Democratic senators from the least populous states, meanwhile, represent 90 million Americans, or 32 percent of the population. When Democrats insist on filibustering judges today, they may say that they are speaking for at least a third of the nation (and in fact they are likely speaking for a lot more, since all the Democrats in the Senate represent 143 million people, while the Republicans represent 138 million). But by fighting for that right, Democrats are also effectively allowing the 40 Republicans who speak for one-fifth of the nation to one day block a Democratic agenda.

Frances Lee and Bruce Oppenheimer, a Vanderbilt political scientist who was Lee's coauthor on "Sizing Up the Senate," say that if they were to reform the Senate, the filibuster is not the first thing they'd choose to tackle. There's a lot that's wrong with the Senate -- it allows, for example, a committee chair who may represent a fraction of the nation to set the policy agenda -- and fixing those things would be more fruitful first steps. For those reasons and others, neither Lee nor Oppenheimer is a fan of the nuclear option.

Still, it's not every day that one gets a chance to fix the Senate. Senators like the way the body works; they like that every member, however few people he or she represents, gets to have a say, and they're often unwilling to make any changes in that system. Others on the left have recognized that the nuclear option gives Democrats a once-in-a-lifetime chance to rewrite the rules in their long-term favor. Besides Slate's Noah, the L.A. Times has supported the move, as has Jonathan Cohn in the New Republic. It may not be an easy pill to swallow right now -- but imagine having 52 Democratic senators one day, a Democratic president, and the chance to nominate a real liberal to the Supreme Court. And imagine, too, the Republicans not having any power to stop you.

It's a delicious thought.


BTD Recommendation:
While the pros and cons for each argument make the choice difficult, I believe the best interest of the American people is in keeping the filibuster.

Rationale: Unlimited debate, or filibusters, have occurred in the Senate since 1806 when senators dropped a rule that allowed a majority of the Senate to put an end to discussion and call for a vote. Over the following 111 years, once a filibuster began, there was simply no way to end it.
That changed in 1917 when Woodrow Wilson's plans for World War I were being blocked by filibusters. As a result, the Senate adopted Rule XXII. This provided senators a method in which to end the filibuster by garnering a two-thirds vote on a motion to cut off debate (cloture).

The Senate amended Rule XXII In 1975 so that in most cases cloture required the vote of three-fifths of the senators. With today's political configuration, 60 rather than 67 senators are needed to end most filibusters.

So there is currently a way to stop a filibuster.

Removing the filibuster would shift the balance of power completely to the majority.

While some of you may be wondering why there’s anything wrong with that, consider for a moment that the next election shifts the party you support into the minority, or vice versa.

Finally, consider that the founding fathers recognized the danger in operating on the passions of the moment and purposely placed “roadblocks” to rapid government action all through our political system. They did this for a reason—to temper and slow the process, force debate, compromise and conciliatory behavior.
The majority hasn’t always been correct in their assumptions about the needs and concerns of all Americans. There’s no reason to think that they suddenly will now.

BTD opines that the loss of the filibuster, in the long run, will hurt the American people far more than it will help them.

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