These are confusing days in Washington. Born-again conservative Christians who strongly want to see President Bush’s judicial nominees voted on are leading the charge against the Senate filibuster, and liberal Democrats are born-again believers in that reactionary, obstructionist legislative tactic. Practically every big-name liberal senator you can think of derided the filibuster a decade ago but now sees the error of his or her ways and will go to amusing lengths to try to convince you that the change of heart is explained by something deeper than the mere difference between being in the majority and being in the minority.
At the risk of seeming dull or unfashionable for not getting our own intellectual makeover, we still think judicial candidates nominated by a president deserve an up-or-down vote in the Senate. We hardly see eye to eye with the far right on social issues, and we oppose some of these judicial nominees, but we urge Republican leaders to press ahead with their threat to nuke the filibuster. The so-called nuclear option entails a finding by a straight majority that filibusters are inappropriate in judicial confirmation battles.
But the Senate shouldn’t stop with filibusters over judges. It should strive to nuke the filibuster for all legislative purposes.
The filibuster debate is a stark reminder of the unprincipled and results-oriented nature of politics, as senators readily switch sides for tactical advantage. Politicians’ lack of consistency on fundamental matters -- the debate over the proper balance of power between Washington and the states would be another case in point -- is far more corrosive to the health of American democracy and the rule of law than any number of Bush- appointed judges could ever be. For one thing, it validates public wariness about politicians professing deep convictions.
Liberal interest groups determined to keep Bush nominees off the bench are in such a frenzy that they would have you believe that the Senate filibuster lies at the heart of all American freedoms, its lineage traceable to the Constitution, if not the Magna Carta. The filibuster, a parliamentary tactic allowing 41 senators to block a vote by extending debate on a measure indefinitely, is indeed venerable -- it can be traced back two centuries. But it is merely the product of the Senate’s own rule-making, altered over time; the measure was not part of the founding fathers’ checks and balances to prevent a tyranny of the majority. The Senate’s structure itself was part of that calculus.
The filibuster is a reactionary instrument that goes too far in empowering a minority of senators. It’s no accident that most filibusters have hindered progressive crusades in Washington, be it on civil rights or campaign finance reform. California’s Democratic Sen. Barbara Boxer, one of those recent converts to the filibuster, embarrassed herself by hailing Sen. Robert Byrd (D-W.Va.) as her inspiration at a pro-filibuster rally. At least Byrd is being consistent in his support -- he filibustered the 1964 Civil Rights Act.
A showdown is looking increasingly likely, though it isn’t clear that all Republicans want this fight. Some of them realize they will again be in the minority someday and that the filibuster is a handy brake on the federal government’s activism. If their caution prevails, or if Republicans take on the filibuster only in the narrow context of confirmation battles, we will happily weigh in again in the future, still on the anti-filibuster team.