Filibusters not applied well

By Aaron Berlin

The Bush administration claims that this nation is in the midst of a “judicial crisis.” As a response to this perceived crisis, Senate Majority Leader Bill Frist has proposed a change in the Senate rules that would effectively abolish the modern filibuster. Not long ago, the filibuster was considered the supreme piece of political theater. Most will remember Jimmy Stuart’s plea from the Senate floor at the climax of Mr. Smith Goes to Washington. A senator could speak for an unlimited amount of time from the floor of the chamber in the name of “unlimited debate.” The notion that a senator could speak for an unlimited amount of time was firmly rooted in the Senate’s founding principle as a contemplative body, removed from the whims of the people by indirect election through state legislatures.

Over time, these principles have eroded. The democratic minority has used the power or the threat of the filibuster against three of Bush’s nominees since he took office. Today, the changes put forward by Frist would indeed ensure a full vote by the Senate on each of Bush’s nominees that emerge from committee (a near certainty due to the G.O.P.’s control of the senate). Under the proposed rules, the Senate would have a number of opportunities to invoke cloture and end the filibuster. The first would require 60 votes, as it does now. However, over the course of other votes, this threshold would be reduced to a simple majority of 51.

Frist and the Bush administration are taking the correct approach to break the judicial stalemate. Regardless of the administration in office, the president has the right to present his nominees to federal courts without fear that they will be denied a fair and judicious vote before the full Senate. During the recent year and a half of Democratic Senate control, Senator Chuck Schumer of New York worked to make the meetings of the Senate Judiciary Committee more explicitly political. Though this may not have been a change of the policies of the Committee, it served the make the body more explicitly hostile to Bush’s position. The position of Frist, shared by Bush, is the correct approach, but not the correct execution.

The filibuster was originally created as an extension of the Senate’s philosophy of unlimited debate. Originally, cloture required two- thirds of the senate. Though that number has dropped, the nature of the filibuster has changed dramatically. The filibuster was initially meant to be a method by which a senator could hold the floor for an indefinite period of time, so long as he continued speaking. This served to empower the majority by delaying the debate. This would create time for added deliberation, during which other senators sharing the same cause could continue to make the case behind closed doors. Today, however, the filibuster has become a method of ending debate. When it becomes clear that the majority cannot produce the needed 60 votes, the measure is effectively killed.

The filibuster must resume its position as a necessary tool of the minority without impeding the constitutionally mandated duties of the Senate. The Constitution requires that a judicial nomination by the president should receive a majority vote. The current Senate policies, however, force the president to garner more support than that mandated by the Constitution. Therefore, the members of the minority under the existing framework can raise the bar of the majority required by the Constitution, effectively amending the Constitution without actually doing so. Article I, Section 5, Clause 2 of the Constitution of the United States grants each house of Congress to create its own set of rules. This should affect the method of deliberations within each body. It should not place higher requirements on a sitting president than those provided by the Constitution. Changes in the Senate rules require a two-thirds majority of the Senate but can be done without similar majorities in the House and state legislators, allowing the Senate to act unilaterally to change the legislative process of the United States. Though their measure seems likely to face stiff and likely insurmountable opposition, Frist and Bush are right to act in such a way as is necessary to reign in the unchecked powers of the Senate.