On balance, Senate shouldn't go 'nuclear' (OCRegister) Ca.

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Monday, May 9, 2005

http://www.ocregister.com/ocr/2005/05/09/sections/commentary/article_510548.php

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On balance, Senate shouldn't go 'nuclear'
Filibusters are hardly a noble tool, but at least they tend to promote limited government


The filibuster in its present form is not enshrined in the U.S. Constitution, which says the two houses of Congress can make their own rules. In the early years, both the House and Senate allowed unlimited debate, meaning any member could hold up a vote on a measure if the member talked long enough, and a small group could postpone it indefinitely.


Although not a part of the Constitution, the filibuster is firmly in the tradition of limited government that protects minority rights from being trampled by a majority, which the Constitution tried to do in numerous ways. The Bill of Rights, for example, amounts to a lengthy statement that there are certain things a majority simply can't do, no matter how popular they may be at the moment.


Republicans prefer a narrow definition, to apply only to cases where the nominee would have had a majority if the filibuster had been ended by cloture. Thus they say it doesn't apply to the case of Abe Fortas, nominated as chief justice by President Lyndon Johnson in 1968. Southern Democrats and Republicans started a filibuster and beat back a first attempt at cloture, whereupon Mr. Fortas withdrew himself. Republicans say there was probably a majority to defeat him if he had come before the full Senate for a vote, however, so that isn't a precedent.


Both parties can be charged with hypocrisy. When they were a minority, Republicans cherished the right to filibuster. In 1995, a group of Senate Democrats introduced a proposal to end all filibusters, which garnered 19 Democratic votes.