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Nuclear Nonsense

The filibuster has a long and ignoble history. Brought into being almost accidentally by the U.S. Senate in the early 1800s, the parliamentary tactic has, for nearly 200 years, allowed a minority in that legislative body to thwart the will of the majority by requiring 60 senators to agree to put a matter to a vote. Quite often, the filibuster has served Senate minorities as a means to nefarious ends--with, most notoriously, conservatives using it to block anti-lynching bills, voting rights legislation, and anti-segregation measures that liberal majorities favored over the years. Simply put, the filibuster is a decidedly undemocratic--and oftentimes illiberal--institution.

As such, there might be a basis for considering the Senate Republicans' recent calls for the filibuster's abolition--the so-called "nuclear option"--a welcome development. But, unfortunately, the rationale for Senate Republicans' newfound contempt for the filibuster is not, in fact, some high-minded concern for democratic process but rather a very practical desire to confirm President Bush's most controversial judicial nominees--something they are unable to do as long as Democrats can filibuster against their nominations coming to a vote. And, because of this, the Republican case against the filibuster is remarkably weak.

To begin with, Republicans are only interested in abolishing the filibuster for judicial appointments; they are not calling for getting rid of the legislative filibuster. But using the filibuster to block judicial nominees is actually far easier to justify on democratic grounds than using it to block legislation. After all, it would seem to be a tenet of democracy that a majority party be allowed to pass its legislative program and then be held accountable at the polls (see Jonathan Cohn, "Kill Phil," April 25). But there is no such prospect of democratic accountability in the case of judicial appointments. Legislation can later be amended or repealed if voters ultimately disagree with the majority that passed it; judicial appointments are, of course, for a lifetime.

Republicans often speak as if no one had used filibusters to block nominees to the federal courts before Bush came into office. In other words, they argue that Democrats have broken an unwritten rule. But this is simply untrue. In 1968, Republicans and Southern Democrats filibustered Lyndon Johnson's nomination of Abe Fortas to serve as the Supreme Court's chief justice, ultimately forcing Johnson to withdraw the nomination. What's more, Republicans used their own parliamentary devices--different from, but no less undemocratic than, filibusters (namely, bottling up nominations in the Judiciary Committee)--to block more than 60 of Bill Clinton's judicial picks from getting up-or-down votes in the full Senate.

There is no justification, therefore, for abolishing judicial filibusters but preserving legislative ones--other than Republicans' desire for political gain. Much as the GOP argued that congressional maps should be redrawn after a switch in party control of a state legislature--in order to better represent a state's partisan makeup--but then only supported redistricting efforts in states like Texas and Colorado, where the state legislatures happened to go from Democratic to Republican, the GOP is once again attempting an ad hoc rule change from which only it benefits.

That is not to say that there are no equitable ways to change the filibuster rules. One proposal currently floating around Washington calls for a repeal of the filibuster beginning in 2009-- after Bush has finished his second term, when no one knows which party will control the White House and the Senate. Another proposal would be to limit judicial terms to a sufficiently long period of time--perhaps 15 years, but not a lifetime--so as to make the loss of the judicial filibuster more palatable. But, while some of these proposals are more worthy than others, they are largely irrelevant, since Republicans have displayed no willingness to compromise.

Which is why Democrats should hold their ground and refuse to end their filibusters against the judicial nominees they oppose--and essentially call the GOP's bluff to detonate the nuclear option. Yes, it is hypocritical for Democrats, who have historically railed against the filibuster as an anti-democratic institution, to now embrace it as a pillar of minority rights. But the filibuster is not the only principle at stake in this fight. Democrats are fighting to prevent Republicans from stocking the federal bench with conservative extremists. If the filibuster is the only way to stop such an ideological makeover, then they must use it.

This article originally ran in the May 23, 2005 issue of the magazine.