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No Constitutional Right to Filibuster By: Alan Nathan
Washington Times | Monday, May 09, 2005


Often when clashes occur between Republicans and Democrats, it sounds like an argument between two kids in class, each declaring his intent to beat up the other but neither having the temerity to take it outside. Such profiles in courage are now on display throughout Capitol Hill.

Under current Senate rules, minority opinion can stop a judicial nominee in the 100-member body through use of the filibuster, providing that the majority is unable to muster 60 votes. It's a dilatory maneuver normally reserved for opposition to legislation. The Republican leadership, under the auspices of Sen. Bill Frist of Tennessee, is threatening to strip away the filibuster, believing it should be limited only to battles over legislation and not applied to the "advice and consent" role of the Senate as referenced in Article 2, Section 2 of the Constitution. The Democrats are apoplectic about this and are promising to paralyze the Senate should the GOP move forward with what Senate Minority Leader Harry Reid of Nevada characterizes as a violation of "checks and balances."

"Checks and balances" is a term of art referring to the inter-dependency of the executive, legislative and judicial branches of our government. However, referencing this term is not a license for the minority party to have majority sway in the Senate — a chamber that's only one-half of one branch. Democrats want the political force of the Republicans without the numeric force to attain it. To let them have such leverage through the filibuster, a non-constitutionally guaranteed entitlement, is to deny the larger agreeing block of voters their proportional representative voice. You don't get to enjoy the very prize that you lost at the ballot box.

Democrats are celebrating polls showing that 66 percent of Americans are against Republicans removing the filibuster. But polling at this juncture is like telling the jury to provide a verdict only after hearing from the prosecution. Surveys are often behind the curve of what folks eventually feel once they're made aware of different facts. Polls taken three years ago showed a slight majority support for the United Nations. Those same pollsters now illustrate a dramatic drop to the 40s because more light has been shined upon that institution's long-standing ills — ills that have existed for years but were failings to which citizens were impervious when first asked for their perspectives.

For example, thanks to liberal ads, most Americans mistakenly think that jettisoning the filibuster would be a break from the intent of our Founding Fathers. New York Democratic Sen. Charles Schumer says, "We're in the ramp-up to a constitutional crisis." Well a quick scanning of our old daddies' Constitution would reveal in Article 1, Section 5 that, "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." In short, the party in power enjoys the greatest influence over said determination of rules. It appears that the only ones in a crisis are those on the losing end of an argument. (Perhaps that's why Mr. Reid has been backpedaling a bit on the rhetoric and making overtures to Mr. Frist on two of President Bush's 10 conservative judicial nominees.)

Strangely however, some in the GOP are reticent about backing Mr. Frist, because they're worried that the Democrats might make good on their threat to stall the Senate. They have business constituents and lobbyists expecting Congress first to address other legislative matters, because, well, darn it, they've paid good money for laws and they're tired of waiting. Others show compunction because they'd like this tool as an option for when they might again be in the minority. What these lion-hearts are forgetting is that if this use of the filibuster is wrong while it hinders you, it's equally wrong when it helps. There's no moral high ground if you're only at the top because the water is rising.

Ultimately, the greatest source of fear is the voting citizenry. But a paradox in representative government is that political power can legitimately go against popular will, even though earlier popular will is what placed that power in office. That's because the electorate is driven more by long-term sentiment over many issues in the aggregate versus short-term feelings over a few in the polls. Hence, the Republican Party is free to secure a greater reach into the future by fighting now for these lifetime judicial appointments. Just as similarly entitled will be the Democrats when it's their turn to have both the White House and the Senate. Scary, huh?

Alan Nathan, a combative centrist and "militant moderate," a columnist, and the nationally syndicated talk show host of "Battle Line With Alan Nathan" on the Radio America Network.


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