Published in the July 2005 Mountain Monthly
Response to Editorial: The Fight over the Filibuster of Judges, by Gary Wood
In his editorial opposing the use of the filibuster, Gary says that the senators should "start acting like statesmen with the good of the country in mind." It is the good of the country that the Democratic senators have in mind. The nominations that were being filibustered before the compromise was reached were about half a dozen out of over 200 nominees proposed by Bush and approved by the Senate with no filibusters. These remaining half-dozen are the rotten apples at the bottom of the barrel. Priscilla Owen of Texas, the nominee that Gary mentioned, issued opinions that even Alberto Gonzales, Bush's own attorney general but once her colleague on the Texas Supreme Court, criticized as "an unconscionable act of judicial activism." And one of the reasons Bush had over 200 nominations to make was because the Republican-controlled Senate Judiciary Committee blocked over sixty of Clinton's nominees.
I am dating myself here, but doesn't anyone remember the movie "Mr. Smith Goes to Washington?" Jimmy Stewart stages a one-man filibuster against a bill (I can't remember what the bill was about, but it must have been bad if Jimmy opposed it). The filibuster has been used "with the good of the country in mind" ever since the Senate started operating. Between 1806 and 1917 there were no restrictions on senators' use of the filibuster. In 1917, senators adopted a rule (Rule 22), at the urging of President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as "cloture."
Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, including anti-lynching legislation. In 1957, Republican Senator Strom Thurmond set a filibuster record-- 24 hours and 18 minutes-- part of a move that successfully blocked the Civil Rights Act of 1957. A fifty-seven day filibuster against the Civil Rights Act of 1964 was finally stopped by a successful cloture vote.
In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or sixty of the current one hundred senators. All these changes were adopted by a two-thirds majority vote (67%). The 'nuclear option' is a sneaky procedural way to get around the two-thirds requirement to change Senate rules by using a technicality that requires only a 51% vote to pass.
The Senate used to be a body that valued bipartisan cooperation, which is why the two-thirds vote is required for making major changes in the rules. But both the House and the Senate have become more partisan over the years. Congressional Quarterly keeps score of the votes, and I found their data for party line votes in the House on major bills. The CQ states that in 1970 Republicans and Democrats toed the party line on these votes about sixty percent of the time. But by 2003 this had increased to 87% for Democrats and 91% for Republicans.
Over the same period, Harris polls showed that the percent of Americans that identified themselves as either Democrat or Republican declined from 81% to 61%. So the average voter is becoming less partisan while the average politician becomes more partisan? It seems that more and more often politicians are representing their party rather than their constituents.
Gary is mistaken in saying that the filibuster has never been used to stop the approval of judges on the Senate floor. The most recent case was the filibuster of Clinton's nominee for the Ninth Circuit Court, Richard Paez. Now you have to watch these politicians-- Frist claims that judicial nominees have never been filibustered, and he may say he has never 'filibustered' a judicial nominee, but that just means he never got up and made a long speech during a filibuster by his fellow Republicans.
He did indeed vote 'NAY' to cloture, that is to continue the filibuster of Paez, on March 8, 2000. Our own Senator Domenici voted in favor of cloture on this occasion, but on ten other filibustered Clinton nominees he consistently voted against stopping the filibuster (he voted twice against Dr. Henry Foster, Clinton's African-American nominee for US Surgeon General). For another filibustered judicial nominee, Google "Abe Fortas."
Finally, here is a direct quote from one of the framers of the Constitution: James Madison wrote in The Federalist Papers that "measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." The US Senate was designed to protect the rights of less populous states and to balance the influence of the House of Representatives. The filibuster is a time-honored procedure used in the Senate to further protect the rights of the minority.