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Filibusters, “Capture” and the Truth


On May 2, 2005 I sent the following op-ed to the Chicago Tribune...

On the May 1, 2005 Chicago Tribune editorial page, Professor Geoffery R. Stone of the University of Chicago wrote a scathing excoriation of the GOP, condemning their plan to eliminate the filibuster for judicial nominees.  The good professor called this plan “…power exercised in a manipulative manner purely for the sake of partisan advantage.”  He defended the “countermajoritarian” effect of the filibuster, and defended its retention.  I take strong issue with professor Stone.


"Remember that the filibuster is not in the Constitution.  It’s a creature of the Senate Rules.  Also, the filibuster is nothing of its former self."


I begin with the initial issue, the filibuster itself.  Remember that the filibuster is not in the Constitution.  It’s a creature of the Senate Rules.  Also, the filibuster is nothing of its former self.  Gone are the days when Senate Democrats would have to take and hold the floor in order to prosecute the filibuster.  When Strom Thurmond, before he renounced racism and joined the GOP, filibustered a civil rights bill in 1957, he held the floor and talked for a continuous 24 hours and 18 minutes.  These days are gone.  Now, a senator sits in his or her office, lights up his or her cigar, kicks up his or her feet onto the desk and says “I filibuster!”

What we have today is the threat of a filibuster.  Senators are not being forced to literally live in the capitol, summoned back to the chamber by the floor holder’s quorum calls should they stray into the cloak room.  Nobody has to try to hold the floor.  In essence, the opponents of our President’s appellate nominees are not debating the issue, they are simply obstructing the process.  There is no up-front price to pay to be an obstructionist; nobody has to stand and hold the Senate floor.  No wonder the GOP is willing to work at eliminating the filibuster.

Professor Stone also speaks of “capture,”  which is a term not found in the Constitution or the Federalist papers.  What he speaks of is a tyranny of the majority, which is a problem with pure democracies.  The United States is not now nor has it ever been a democracy.  Article IV, Sec. 3 of the Constitution states, “The United States shall guarantee to every State in this Union a Republican Form of Government…”


"The House of Representatives was created to represent the people.  The Senate was originally created to represent the other class of members of the United States, the states. Furthermore, let’s remember that, until the 17th amendment, ratified in 1913, state legislatures appointed senators."


This form of government, including the “countermajoritarian” nature of the Senate itself, where every state is represented equally regardless of population, prevents the very “capture” the good professor fears.  The House of Representatives was created to represent the people.  The Senate was originally created to represent the other class of members of the United States, the states. Furthermore, let’s remember that, until the 17th amendment, ratified in 1913, state legislatures appointed senators.

The “capture” that is featured in the good professor’s demagoguery would have been extremely difficult before 1913.  Now, it is virtually impossible.  This is not an argument that supports retention of the filibuster.  There is also one other issue to consider.  As the professor notes, majorities are “transitory.”  Someday, the GOP will again be in the minority.  At that time, the elimination of the filibuster will benefit the Democrats.  It will balance out.  Right now, the courts are demonstrably left of center.  If anything, the correction will bring the courts to center, not to the right wing, much less the extreme right wing. 

As to “power exercised in a manipulative manner purely for the sake of partisan advantage,” the professor’s historical citations are nowhere to be seen.  Why?  They would show that, prior to the 2002 and 2004 elections, where the people twice increased the GOP majority in the House and (in 2002) gave the Senate back to the GOP, the liberals who held power openly advocated the elimination of the filibuster.  Timothy Noah wrote a piece in Slate with the not-so-obscure title of Abolish the Filibuster! in February 2001.  Robert Byrd, presently speaking hotly against the Nuclear option, often modified Senate rules using a virtually identical technique in the 1970s and 1980s.  Apparently, to professor Stone,  it is wrong for the majority to assert its majority rights, unless the Democratic party is in charge.

Professor Stone also lodges a subtle accusation of hypocrisy at the GOP, by noting that they threatened filibuster of Abe Fortas’ promotion to Chief Justice in 1968.  Taken alone, it looks as if the 1968 filibuster threat is identical to the present situation.  It is not.  First, Fortas started out with the support of both parties, including minority leader Everett McKinley Dirksen (R-IL).  Lyndon Johnson, a lame duck, was ramrodding this promotion through the Senate at the end of his last term.  Moreover, Fortas was found out to have received a private stipend equal to 40% of his associate justice’s pay to teach a summer course at a university.  Senator Dirksen and others pulled their support, the filibuster threats followed, and that killed Fortas’ promotion.
In the present situation, there is no appearance of impropriety.  The nominees are not “extreme,” as they were mischaracterized by the left.  A Chicago Tribune article in the same May 1, 2005 edition, Section One, shows the evenhandedness of nominees Janice Rogers Brown and William Pryor.  As the Democrats have to pander to the diverse coalition of extreme leftists that form their base, they find themselves having to oppose our President’s every nominee to every court of any consequence.

This opposition is even more important to the base factions of the Democrats, since their candidates have been rejected by the people.  These factions now must rely upon the courts to implement their agenda by judicial fiat.  The president has refused, for example, to sign the Kyoto accord, correctly noting that the treaty unfairly penalizes American industries and favor those of the Third World, which will be permitted, more or less, to pollute with impunity.

Professor Stone admits in his diatribe that the “nuclear option” is Constitutional.  He has no choice, for the Democrats have previously modified Senate rules in a virtually identical manner.  The GOP is merely taking a page from Senator Byrd’s playbook. 


"While the professor speaks fearfully of majority tyranny, we are presently under minority tyranny.  A majority-elected president and a majority elected Senate cannot ratify a judicial nominee, because a minority, and a shrinking one at that, has an apparently unconstitutional wrench in the works."


Power exercised in a manipulative manner purely for the sake of partisan advantage.  While the professor uses this term to disparage the GOP, in truth, it presently applies not to them, for they have not yet set off this “nuclear” plan.  It instead applies to the obstructionists on the left, who are actively attempting to impose a requirement not found in the Constitution on judicial nominees.  While the professor speaks fearfully of majority tyranny, we are presently under minority tyranny.  A majority-elected president and a majority elected Senate cannot ratify a judicial nominee, because a minority, and a shrinking one at that, has an apparently unconstitutional wrench in the works.

If professor Stone feels so strongly that a minority of Senators should be able to stymie the President’s judicial picks, there is a way that he and his supporters can make this the case:  Amend the Constitution.  There are ways to do this that bypass the Congress.  If the pro-filibuster group can muster the appropriate number of state legislators, they can amend the Constitution to protect the filibuster, or to impose a stricter confirmation process for Article III judges.  Otherwise, all this boils down to is the GOP’s insistence that every nominee actually gets a vote for or against the Senate’s consent, which is of course an integral part of the Senate’s commission for “advice and consent” of judicial nominees as provided for in Article II, Section 2, Clause 2 of the Constitution.