Why Not Bust the Filibuster?

Yesterday's L.A. Times editorial page came out for nuking the filibuster (hat tip: Centerfield):

We usually like it when centrist senators like John McCain (R-Ariz.) and Ben Nelson (D-Neb.) try to galvanize the sensible center on behalf of some compromise, but we sincerely hope they fail in their attempt to preserve the Senate's filibuster. Count this page on the side of conservative social activists who are pushing Senate Majority Leader Bill Frist to "nuke" the filibuster.

We don't share these activists' enthusiasm for the White House judicial nominees triggering the current showdown. But we do believe that nominees are entitled to a vote on the floor of the Senate. The filibuster, an arcane if venerable parliamentary tactic that empowers a minority of 41 senators to block a vote, goes above and beyond those checks on majority power legitimately written into the Constitution.

The filibuster is an inherently reactionary instrument most famously used to block civil rights legislation for a generation. . . .

Frist is on the verge of doing the right thing for the wrong reasons. . . . force a change in rules to prohibit filibusters of judicial nominees. That would be a great triumph for the American people. It would be an even greater triumph if the Senate were to destroy the filibuster altogether.

What is the Times thinking? They seem to have stuck in their liberal memories a Foghorn Leghorn image of a bloviating segregationist Southern Democrat Senator orating to delay the inevitable end of a screaming injustice. And they would be right.

I don't know the L.A. Times' position on reproductive rights, but I can guess. (It's an industry town: Hollywood is only a stone's throw away.) Are they aware that conservatives see Roe v. Wade as an injustice on the scale of slavery and are as impatient to sweep it away? Not to mention any legitimation of homosexual love?

For better and for worse, the protection of minority rights can put a drag anchor on the runaway pace of social change, change which a part of society believes is long overdue and another part is deeply threatened by. That forces the nation to take time to thrash things out -- what Ancient Mariner calls a Pause For Reflection (see my next post) -- and to grow towards a moral consensus, even when that growth is an often cruel and messy process. Looking back, one could hardly say that delay had anything to recommend it when it came to civil rights and desegregation. But would one be entirely right? And much more to the point, can one have it both ways?

Let's look at it another way. In the best of all possible worlds, where every Senator was an independent-minded citizen legislator who faithfully represented his conscience and his humblest constituents, perhaps judicial nominees should indeed get an up-or-down vote, and a simple majority of 51 percent should be enough to confirm them. But we don't live in that world. As Mighty Middle points out, we live in a world rent by raging partisanship:

People ask "Why is it that members of Congress have less capacity to work together than do an equal number of house cats?"

Well, there are several reasons. The main reason Congresspeople are unable to work together effectively -- unless it involves poking their snouts into the private business of a sick woman in Florida -- is partisanship. Well, partisanship plus legalized corruption. And there's sheer, bloody-minded stupidity. But mostly partisanship.

(Go look at Mighty Middle's suggestion for combating this plague.) The real world we live in is one where party members are pressured to vote in lockstep, and a simple majority becomes a winner-take-all spoils system that operates as if even a very substantial minority didn't exist. That wheezing contraption, the filibuster, at least gives a substantial minority a power proportionate to its size to protect its constituents' interests.

The last word goes to eminent historian James MacGregor Burns, professor emeritus at Williams College (and old friend of Ancient Mariner), in a letter in yesterday's New York Times. Burns argues that it is when a decision is irreversible, when there is no other recourse, that the filibuster's protection becomes critical:

When legislators debate controversial social or economic legislation, a filibuster is unwarranted because bad laws in those domains can be repealed.

When they vote on judges with lifetime tenure or pass bills that restrict civil liberties, howeer, the errors may well be irreversible; hence, lengthy debate and delaying tactics can be a crucial safeguard.

The implication for today? The nomination of John R. Bolton to be ambassador to the United Nations should not be filibustered because the error can be remedied: he can be dismissed.

But dubious judicial nominations can and must be filibustered, because such errors and excesses will indeed be irreversible.

- amba

UPDATE: The best ongoing coverage of the Senate battle is at Basie. (Hat tip: The Moderate Voice.) That's where I learned that Lindsey Graham (R-SC), one of my favorite senators, is also in the bipartisan group trying to work out a compromise -- and also a target of intense behind-the-scenes White House lobbying.

Comments

[Tamar]

How thrilling to see Ancient Mariner posting again! In fact, his post inspired a name change for my blog today!