Fading Democracy: The Fated Filibuster

As Peter Griffin leads a circus into his backyard on one Family Guy episode, he says to his wife, "Look Lois, the two symbols of the Republican Party: an elephant, and a fat white guy who's threatened by change." In most cases, "white" would be the only of those descriptors ascribed to me. But there is currently a political change looming overhead that threatens me, as it should threaten all Americans who value democracy.

Senate Majority Leader Bill Frist (R-TN) has proposed a change in Senate rules that would prevent the use of the filibuster to block confirmation of judicial nominees. Under Senate Rule XXII, the filibuster can be used by a minority of Senators to delay discussion of a matter, often until the issue dies in Senate without going to vote. Dr. Frist's proposal would allow Senators to end any filibuster on judicial appointments with 51 votes-a simple majority-effectively annulling the filibuster and rescinding one of the few legal rights of the minority.

Allow me to reiterate this with contemporary application: the Republicans in Senate wish to dissolve the Democrats' only means of influence over confirmation of judges nominated by President Bush. In anticipation of the retirement of at least one Supreme Court Justice (Chief Justice William H. Rehnquist currently suffers from thyroid cancer and many speculate that he will soon step down), most Republican senators want to revoke the Democrats' right to block radical nominees from ascending to the Supreme Court.

The religious right claims that the filibuster is being used by liberal senators to discriminate against "people of faith." In a speech to the Federalist Society a few months ago, Dr. Frist called the filibuster "radical" and "dangerous," and "a formula for tyranny by the minority." He uses exciting rhetoric, I admit, but the statistical fact is that during President George W Bush's first term, Democrats used the filibuster to block exactly 10 of over 200 judicial nominees. This is hardly an exercise in tyranny. It is simply an effort to protect liberal and moderate constituents-who are not a minority in this country-from the jurisdiction of judicial nominees considered to be outside of the legal mainstream.

I recently attended a press conference held by Sen. Chuck Schumer (D-NY) in support of protecting the filibuster. As I walked among waving "Protect Our Rights" signs, eavesdropping on the conversations of their bearers, I gleaned three arguments for protecting the filibuster that I found most compelling:

First, changing the filibuster rule with regard to judicial nominees will remove incentive for bipartisan cooperation. If only 51 of 100 Senate votes are required to approve the nominee, the majority party will always have the power to unilaterally place judges on the bench-especially under the current regime in which the judiciary committee, both chambers of Congress and the presidency are dominated by a single party. In a dangerously polarized political climate, we should be encouraging, not discouraging, bipartisan cooperation.

Second, eliminating the filibuster will diminish our constitutional system of checks and balances. The erosion of this fundamental democratic institution will open the gate for the tyranny of the majority. Our government should err on the side of moderation, not extremism, and our judicial system needs be in the hands of impartial individuals. This cannot be assured without vesting some amount of power in the minority.

Finally, the abolition of the filibuster with respect to nominees will set a precedent for the removal of the filibuster altogether, on all issues that deserve the attention and deliberation of every member of Senate. Again, minority voices must be heard.

This is not a light matter. Dr. Frist's proposal has been popularly dubbed the "nuclear option," for its potential to end politics as we know it, and many Democratic senators have responded by threatening a complete shutdown of Senate proceedings.

Senate minorities of all allegiances have been legally entitled to assert their voices through the filibuster on critical issues since 1790. If we accept the elimination of the filibuster for judicial nominees, we welcome the advance of radicalism. If our senators lose the right to filibuster, they forfeit an imperative mechanism of moderate reason. If we allow the realization of this unprecedented rule change, what will we lose next?

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