April 3, 2005
Bipartisan Hypocrisy on the Filibuster
By Steve Chapman

Character, it has been said, is what you do when no one is watching. There are lots of people who behave well because they see something to be gained by it. There are some, but not nearly as many, who behave well purely because they want to do the right thing.

The same regrettable pattern shows up in politics, where some people champion noble principles because they truly believe in them, and some do so only for tactical advantage. What we've learned from the fight over the Senate filibuster is that a lot of people on both the right and the left are adept at changing their positions 180 degrees to suit their immediate purposes.

The filibuster is an instrument that allows 41 senators to block Senate action by threatening to talk it to death. Its vice is that it allows an obstinate minority to prevent the majority from getting its way. But that is also its virtue. The filibuster serves as a speed bump to keep legislators from barreling out of control.

That's why enemies of the filibuster have historically been on the left side of the political spectrum, where it is seen as obstructing the prompt realization of the people's will. When Congress used it against him, Democratic President Woodrow Wilson thundered that the "Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action."

Liberals chafed when Southern segregationists filibustered civil rights legislation. By 1975, with Democrats in control, they were able to reduce the number of votes required to stop a filibuster, from 67 to 60 votes. In 1993, impatient with Republicans who were keeping President Bill Clinton from enacting his programs, former Carter administration adviser Lloyd Cutler argued that the filibuster was unconstitutional. But Republicans were not convinced.

They are now. In 2003, the conservative group Judicial Watch filed a lawsuit challenging the constitutionality of the filibuster (which was dismissed). Senate Majority Leader Bill Frist (R-Tenn.) says the use of this tool against President Bush's judicial nominees "must end." The Wall Street Journal editorializes that judicial nominees have a "constitutional right to a vote on the Senate floor."

Conservatives are usually leery of discovering new constitutional rights in places where they had never been found before. In their rage against the filibuster, that inhibition has vanished. But the argument is like trying to make bricks out of moonbeams.

The Constitution says only that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint" judges, ambassadors and other officers. To read that as a command to bring every nominee to a floor vote only suggests that conservatives have learned from liberals how to torture the Constitution into saying whatever they want to hear.

But what they want to hear today is not what they wanted to hear before. As The Nation magazine notes, Republicans tried to filibuster six of Clinton's judicial appointees.

Conservatives argue that it's illegal to impose an effective "super-majority" requirement not found in the Constitution. That position is also an about-face from the 1990s, when Republicans wanted a rule barring Congress from raising taxes without a 60 percent majority.

The right has no monopoly on hypocrisy, though. In 1995, The New York Times editorialized for junking the filibuster, which it called "an archaic rule that frustrates democracy" and "the tool of the sore loser." Recently, the Times admitted it had experienced a deathbed conversion and could see that its earlier position was simply "wrong."

We can assume the Times will never waver from its newfound attachment to this archaic means of frustrating democracy. But other liberals are not so committed. In The New Yorker, former Carter speechwriter Hendrik Hertzberg urged Senate Democrats to "raise holy hell" to preserve their right to filibuster judicial nominees. When Democrats regain power, though, Hertzberg wants them to not only end its use for judges, but "get rid of it for everything else, too."

You can see why liberals would want to eliminate anything that makes it harder for Congress to act.

It's not so clear why that would appeal to conservatives, who used to believe that the least government is the best government.

No majority lasts forever. Someday, Democrats are likely to control the White House and Congress, and they will be eager to confirm their nominees and enact their policies as rapidly as possible. If Republicans fatally weaken the filibuster, there will come a day when they will really miss it.

©2005 Creators Syndicate

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