WASHINGTON — Students of American politics are about to witness
a real battle royal in the Senate. The use of the filibuster is the
issue. We are not talking about the filibuster as used by Southern
Democrats to preserve segregation. That filibuster was the
parliamentary standby resorted to by Democratic reactionaries for
much of the 20th century. This filibuster is the parliamentary
standby resorted to by liberal Democrats. They use it to preserve
not segregation but rather judge-made law. They are the
reactionaries of the 21st century.
In the federal system of government, created by our
Constitution, the legislature makes the law, the president executes
the law, and the courts judge whether the law is constitutional.
Yet as the Democrats’ power in legislatures all over the land has
slipped into minority status they have increasingly favored the
courts to make law. That is not very democratic, but then neither
was segregation. In the Senate today Democrats comprise the
minority just as Southern Democrats once did. Thus like the
Southern Democrats they must needs resort to the filibuster.
Not surprisingly the liberal Democrats use the filibuster to
preserve a form of governance as antithetical to the Constitution
as segregation once was, that is to say, judge-made law.
Increasingly laws made in the legislatures have reflected the
wishes of the growing American majority, the conservative majority.
Judge-made law is the law of the Democratic minority. The battle
royal we are about to see in the Senate is essentially about
whether the Democrats can continue their rear guard action against
progress or, to use another of the words liberal Democrats
have long thought they held the franchise on, change.
Senate Majority Leader Bill Frist is ready to end the impasse
over seven of the President’s judicial nominees in the Senate. They
are being held up by the Democrats’ threat to filibuster against
them, a filibuster that takes 60 votes to shut off. Frist is
threatening to pass a parliamentary rule that judicial nominees
cannot be filibustered against. Creating that rule takes only 51
votes, which he believes he has. There is talk from some senators
such as Senator Trent Lott that a compromise is advisable, but no
compromise is possible.
Control of judicial nominations is the Democrats’ last means of
making policy in this increasingly conservative country. They are
unlikely to control the Congress for years to come. In the national
vote for the presidency they seem to come close to beating the
Republicans, but consider the mediocre field of potential
presidential candidates they have for 2008. With a field led by
such a polarizing figure as Senator Hillary Rodham Clinton, they
are unlikely to win the presidency. In the weeks ahead the
Democrats will fight to the end for the filibuster. It is all they
have.
The Republicans have been preparing for the fight for weeks.
They have gotten essential legislation out of the way. The Senate
is about ready for the battle over the filibuster, and the
Republicans will either fight it as vigorously as the Democrats
defend it or they will let the Democrats dictate the shape of the
federal judiciary. Frankly I doubt that Senator Lott can work out a
compromise. The looming openings on the Supreme Court make
Republican compromise impossible. At the end of the Supreme Court’s
session, probably in mid-June, the Chief Justice might well retire.
By the end of the summer there could be two vacancies. By the time
Supreme Court vacancies open the filibustering of judicial
appointees must no longer be possible. Surely all Republicans know
this.
Thus, my fellow political connoisseurs, pull up a chair. Prepare
for the fireworks. The 527 committees of both parties have already
been preparing the debate. If the liberal Democrats lose this one
their fate is sealed. If the Republicans lose the judiciary remains
in reactionary hands for a while longer. My guess is that the
Republicans are going to win.
