Defending the Filibuster

George Will defends the institution of the filibuster and believes a move by the Senate to abolish it would ultimately be harmful, regardless of how frustrating its use to thwart judicial nominees is in the present.

The filibuster is an important defense of minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the governmental juggernaut. Conservatives, who do not think government is sufficiently inhibited, should cherish this blocking mechanism. And someone should puncture Republicans’ current triumphalism by reminding them that someday they will again be in the minority.

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A senior White House official says the president believes that his emphasis on Democratic obstruction of judicial confirmations is one of the main reasons for Republican gains in this year’s Senate elections. If so, the political solution to what is a political problem is working.

The president should renominate all 10 appellate-court nominees who have been filibustered, and he should vow, like General Grant, to “fight it out on this line, if it takes all summer.” Norman Ornstein, a student of these things, says Senate Republicans could force Democrats to conduct the kind of filibuster Southern Democrats conducted against civil-rights legislation in the 1950s—talking around the clock, the obstructionists and their opponents sleeping on cots in the Capitol, the Senate paralyzed. There has never been such a spectacle in the era of C-Span and saturation journalism on cable 24 hours a day. Do Democrats want to make 2005 the year of living dangerously? Seventeen of their 44 seats are at risk in 2006—five of them in states Bush just carried.

Will’s argument has merit and his plan for fighting it out would be wonderful political theater. That said, I disagree. The Constitution already puts numerous hurdles in the way of a thin, overzealous majority: bicameralism, staggered Senate terms, representation of states rather than population in the Senate, and the veto are just the most obvious examples. Judicial review, itself extra-constitutional, is yet another barrier to encroachment by the majority on the rights of a minority.

The filibuster, while now steeped in tradition, is not a part of the Constitution. Used as a last resort on the most controversial issues of the day, it was tolerable. Now that it has become a routine tool of the minority, though, it turns our system on its head. President Bush has been elected twice and Republicans have had majorities in both Houses of Congress after each of the last six elections. At some point, they should be allowed to govern.

FILED UNDER: Congress, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. McGehee says:

    It’s possible that the minority in the incoming Senate will be less confrontational, and the filibuster abuse of the last few years will become a shameful memory.

    But if not, I think restricting the use of the filibuster would have to be in the best long-term interest of the Senate. I also think that its application should be restored to what it was in the day, when filibustering Senators dared not even yield the floor long enough for a bathroom break.

    In fact, that alone might achieve more than placing restrictions on the occasions in which the filibuster can be used; minority-party Senators would be more inclined to pick their fights — er — judiciously.

  2. Myopist says:

    “I also think that its application should be restored to what it was in the day, when filibustering Senators dared not even yield the floor long enough for a bathroom break.”

    Yea indeedy. For all the tough talk, neither party’s Senators are what you’d call hardcore when it comes to modern filibusters, not least of which is because, well, these guys know each other and stuff. Indeed, in many ways the Senate resembles nothing so much as the World Wrestling Federation with nice ties; lots of sound and fury and trash talk, but everybody car pools together at the end of the day.

    I am not saying that there’s anything wrong with that in general, mind you – but the judiciary thing has gone too far and the Democrats are going to have to publicly admit defeat on this, at least a little.

  3. Stygius says:

    The filibuster will not be killed off by Dick Cheney and Bill Frist with a chair ruling. Sorry, but nineteenth century senators were a little smarter than that. The ruling itself can simply be filibustered, and the “constitutional” argument against filibustering nominations ignores the fact that the Constitution says that the houses of Congress can establish there are own rules, like–say–the right to unlimited debate.

    Outside is right — political theater it will be, and that is all it will be.

    http://stygius.typepad.com/stygius/2004/11/end_of_the_fili.html