Bipartisan Hypocrisy on the Filibuster
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
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.
This Article to a Friend