HAVING COMPLETED THEIR 39-hour marathon debate, Senate Republicans must now choose their next course of action in trying to force an up-or-down vote on the President’s unconfirmed judicial nominees. The conventional wisdom dictates that the GOP should now conduct a frontal attack on the Senate’s filibuster rule itself.
The conventional wisdom is wrong. Now is not the time to kill the filibuster. Now is the time to make Democrats actually use the filibuster.
Democrats continue to prevent an up-or-down vote on five of President Bush’s judicial nominees – Janice Rogers Brown, Carolyn Kuhl, Priscilla Owen, William Pryor and Charles Pickering – by rejecting occasional motions for cloture in the Senate. But despite assertions to the contrary, Democrats have not “filibustered” the nominees in any traditional sense: they have not held the floor for continuous debate while defeating motions to end debate and vote on the matter.
Democrats have not engaged in an actual filibuster because of the decision of Senate Majority Leader Bill Frist not to force their hand. So far, his decision to schedule an overnight discussion of judicial nominees despite Democrat protests – a “counter-filibuster,” if you will – marks his most confrontational tactic. For the last year, Sen. Frist has acquiesced to Democrat rejections of cloture, allowing the Senate to consider other matters upon the failed motion to vote. This acquiescence has allowed the Democrats to enjoy the fruits of a filibuster without paying any of the cost: sacrificing other priorities; conducting an extended public demonstration of their dedication to their position and their obvious minority status; expending vast amounts of energy to a persistent state of debate.
The most interesting development in this ongoing struggle is that Democrats, while wrapping themselves in the counter-majoritarian protection of the cloture rule, have wholly disavowed the purpose of that protection. The Senate’s cloture rule, Rule XXII, was not created to foist a supermajority-vote rule into a body whose limited supermajority-vote requirements already are detailed in the Constitution. Rather, Rule XXII was created to strike a balance between a tyranny of the majority and a tyranny of the minority. It prevented outright minority obstructionism while avoiding, to borrow the words of John C. Calhoun, “an attempt to rule the Senate by the despotism of the gag.”
In the furor over judicial nominees, Democrats have turned the cloture rule on its head. They are not an oppressed minority demanding the right to be heard. Quite the opposite: they don’t want to discuss the judges at all anymore. To Sen. Tom Daschle and others, extended debate on the subject has been “a colossal waste of time.”
Thus, Democrats have enjoyed the protection of Rule XXII while flouting such protection’s purpose. If the bipartisan Senator majority ready to confirm the judges really wants to prevent the minority from exerting an effective veto in this matter, they must force the Democrats to accept the full weight of Rule XXII. Sen. Frist must clear the Senate calendar and start the debate. If Democrats want the filibuster’s protections, it’s time to make them filibuster. Not for a fixed four hours. Not for a fixed forty hours. Make them filibuster until they concede and vote or until Republicans are ready to concede the issue permanently and release nominees from their current limbo.
Until then, Republicans decrying the dangerous precedent set by the current “filibuster” are in fact helping to set that precedent. They are telling future Senators that a minority of the body can enforce a supermajority voting requirement if it simply blocks cloture from time to time without further consequence. By forcing a true filibuster, Republicans will smash any such illusion.
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Instead of putting Democrats to their word, some Republicans have moved to eliminate Rule XXII altogether, at least in the context of presidential appointments. Some would pursue the “nuclear option,” using parliamentary procedure to avoid Rule XXII. Others, Sens. Lindsey Graham and Saxby Chambliss, announced their plans to sue to have the filibuster declared unconstitutional. But attempts to eliminate Rule XXII should be viewed with a suspicious eye by conservatives more than anyone else.
Rule XXII was instituted to protect yet limit debate, not to eliminate debate altogether. The Senate – in contrast to the House – is not a strictly majoritarian body. This tradition goes back as far as 1806, when the Senate eliminated the “previous question” motion, a parliamentary cloture motion utilized by the Continental Congress. The Senate, Washington’s “saucer” meant to cool the impassioned “hot tea” judgments of the House, was from its beginning a fundamentally deliberative body. Where the value of debate despite majority preference to vote is so deeply rooted in the nation’s structure, conservatives – especially those eager to cite original intent of the Framers – should be the last to demand that we cast aside the teachings of history for the sake of momentary political advantage.
Even Henry Cabot Lodge, whose criticism of ceaseless debate is oft-cited, came to change his mind on this issue. Ten years after warning that, “[t]o vote without debating is perilous, but to debate and never vote is imbecile,” he changed his mind and announced that he would “much rather take the chances of occasional obstructionism …. [In the Senate] we should have, minority and majority alike, the fullest possible opportunity of debate.”
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President Bush’s judicial nominees deserve up-or-down votes. Senate Democrats must not be allowed to create supermajority voting requirements where the Constitution has prescribed a simple majority rule. But, to quote Lodge once more, “if there is obstruction, it is because the majority permit it.” Senate Republicans can no longer permit this miscarriage of justice, but they must not abandon conservative sensibility to confirm conservative judges. The solution is at hand: force the filibuster, Senator Frist.
Adam White is the editorial page editor of The Record.