OP-EDS

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May 23, 2005

Debunking the myths about the filibuster

After two years of the Democrats' zealous obstructionism, their flimsy justification has been thoroughly rhetorically dismantled. However, I am continually shocked by the campus's utter ignorance on the history and nature of one of our Senate's most integral traditions. I've encountered more overeducated students than I care to count who could name the capital of Burkina Faso or the date of the start of the Glorious Revolution and even some who would take a stab at defining "cohomology," but nonetheless entertain a number of alarming misconceptions about the American filibuster. I'd like to disabuse them of these misconceptions.

First, a little background: Most U.S. Senate business, including the passage of legislation and the confirmation of the President's judicial nominees, is decided by a simple majority vote (51). Generally, this vote occurs when debate ends. However, the minority party can prolong debate and delay an up-or-down vote indefinitely by talking indefinitely, a tactic known as the "filibuster." In order to end a filibuster, three fifths of the Senate (60) must vote for cloture. However, it is possible that the majority party could take a series of steps to change the rules to force a vote in certain instances, a move called the "nuclear option."

Myth: The minority party of the Senate has been filibustering judicial nominees for decades. Fact: Democrats began regular use of the judicial filibuster in 2003. Liberals like to point to the 1968 filibustering of Johnson's nomination of Abe Fortas to Chief Justice of the Supreme Court; however, that filibuster was bipartisan (24 Republicans and 19 Democrats) unlike today's Democrat-only filibusters. Anyway, Fortas ultimately withdrew his nomination and resigned from the Court in the wake of ethics charges.

Myth: The framers of the Constitution intended to allow the Senate to avoid a vote by filibustering. Fact: The minority party of the Senate has been filibustering its own business—Senate legislation—for well over a century. However, the Senate has no business obstructing the President's. As James Monroe explained on June 10, 1788 in the Virginia Ratifying Convention, "He is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. The concurrence of a bare majority of those who may be present will enable him to do these important acts."

Myth: The Democrats have been dedicatedly going up to the lectern and talking about nothing. If they make the effort to filibuster, they should get some credit for that. Fact: While the Democrats have, in fact, been dedicatedly going up to the lectern and talking about nothing for as long as I can remember, that has nothing to do with their filibusters (it's just that they have nothing to say). Much to my chagrin, a 1975 rule made the filibuster painless—the Democrats don't actually have to filibuster; they just have to state that they intend to. If they were actually filibustering, I have to say, that would almost be worth it.

Myth: The Democrats have been confirming a lot of Bush's nominees. Fact: Bush has had 69 percent of his nominees to federal appeals courts confirmed, compared to 74 percent under Clinton, 78 percent under George H.W. Bush, 89 percent under Reagan, and 93 percent under Carter. Keep in mind that Bush enjoys a friendly Senate.

Myth: If Frist uses the "nuclear option," the minority party will no longer be able to filibuster legislation. Fact: Nobody is proposing eliminating the legislative filibuster, only the judicial one. The legislative filibuster would not be affected.

Myth: If Frist were successful, it would be the first invocation of the nuclear option. Fact: Robert Byrd (D-WV) used a parliamentary maneuver four times, in 1977, 1979, 1980, and 1987, amending Senate rules with a simple majority vote.

I'll leave you with a quotation: "I cannot recall a judicial nomination being successfully filibustered. I do recall earlier this year when the Republican Chairman of the Judiciary Committee and I noted how improper it would be to filibuster a judicial nomination." U.S. Senator Patrick Leahy (D-VT), Congressional Record, October 14, 1998.