Washington Panorama
May 2005
A case of the tail wagging the dog, or the tyranny of the minority in the Senate
Using the filibuster to delay debate or block legislation has a long history in the United States. The term filibuster — from a Dutch word meaning “pirate” — became popular in the 1850’s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill. In 1975, the Senate reduced the number of votes required for cloture (vote to end a filibuster) from two-thirds (67) to three-fifths (60) of the 100 member Senate. (Senate web site)
Brandt Goldstein, writing in Slate (a WEBZINE), asks: Why is the Senate allowed to use this anti democratic stunt, and how does it work? A filibuster is allowed because the Constitution gives each house of Congress the right to “determine the Rules of its proceedings.” In the Senate the rules allow for a Senator to hold sway for as long as he is able.
“ Many of us are familiar with the hours-long filibuster of Senator Jefferson Smith in Frank Capra’s film Mr. Smith goes to Washington. Senate History shows that in real life Senator Huey P. Long effectively used the filibuster against bills that he felt favored the rich over the poor. He recited Shakespeare and read recipes for “pot-likkers” in holding the Senator floor for fifteen hours. The record for the longest individual speech goes to South Carolina’s late J. Strom Thurmond who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957.” (Senate web site)
The strategy behind the filibuster is obvious — hold up other Senate business, creating pressure to put aside nominees or bills as everything else on the agenda gathers dust. The filibuster — or mere threat of it these days — tends to be more effective near the end of a term. In 1968 the Senate saw its first filibuster on a Supreme Court nomination, that of Abe Fortas by President Lyndon Johnson. When the senate attempted and failed to invoke cloture, Johnson withdrew the nomination. (Senate web site)
Democrats filibustered 10 nominees to the U. S. appeals court during President G. W. Bush’s first term, and they have said they will do it again this year for the seven Bush renominated according to Jesse J. Holland, a writer for the Associated Press in Washington D. C. He says Senate Democratic leader Harry Reid of Nevada also said Democrats might filibuster future nominees, possibly including Bush’s choice for a Supreme Court vacancy should on occur. According to Holland Democrats oppose three nominees for the 6th U.S. Circuit Court of appeals, because Republicans blocked Senate votes on former President Clinton’s nominees for the same court.
William Kristol, in the May 9, 2005 issue of The Weekly Standard, writes: “There is no rationale for a filibuster, however, when the Senate is acting under Article 2 in advising and consenting to presidential nominations.” “The Senate’s role is to accept or reject the president’s nominees, just as the president has a responsibility to accept or reject a bill approved by both houses of Congress. There he does not have the option of delay. Nor should Congress have the option of delay in what is fundamentally an executive function of filling the nonelected positions in the federal government.
“This is why the filibuster has historically not been used on nominations. This is the constitutional logic underlying 200-plus years of American political practice. What’s really going on here, of course, is this” President Bush, having been elected and reelected, and with a Republican Senate majority, wants to appoint federal judges of a generally conservative and constitutionalist disposition. The Democrats very much want to block any change in the character of the federal judiciary — a branch of government they have increasingly come to cherish, as they have lost control of the others. It’s a political struggle, not unlike others in American history, with both sides appealing to high principle and historical precedent.”
“But it happens to be the case the Republicans have the better argument with respect to the filibustering of judicial nominees. The systematic denial of up or down votes on judicial nominees is a new phenomenon. Republicans are right to say that it is the Democrats who have radically departed from customary practice.” concludes Kristol.
Editor’s note: “Tony” Grudnoski is President of the Marquette SERA hapter and SERA’s Washington “Reporter.” He may be reached at 216 W. Hewitt Ave., Marquette 49855; Ph. 906/228-8670; e-mail tonyg25@hotmail.com.
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