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.
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 1950sÃ¢€”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 2006Ã¢€”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.