It could be a Dr. Seuss story: Red team, blue team, my team, your team. Both Democrats and Republicans have flip-flopped on the use of the filibuster because the once solidly Democratic Senate now looks to be firmly Republican.
Republicans who once extolled the virtues of divided power and the Senate's role in slowing down the rush to judgment now demand an end to delays in approving President Bush's judicial nominees. President Bush says the Democrats' "obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate's constitutional responsibility to vote on judicial nominees."
Democrats who now wax eloquent about a "rubber stamp of dictatorship" replacing "the rights to dissent, to unlimited debate and to freedom of speech" in the Senate not too long ago sought to eliminate the filibuster altogether.
In 1993 the distinguished Democratic lawyer Lloyd Cutler, counsel to President Jimmy Carter and later to President Bill Clinton, argued that the Senate could change the cloture rule by majority vote, just as Republicans argue today. In 1994 leading liberal ex-politicians launched the "Action, Not Gridlock!" campaign to stop filibusters against Clinton's legislative agenda and nominees. In 1996 nine current Democratic senators sought to declare that all filibusters unconstitutionally infringe on majority rule.
When Republicans balked at some of President Clinton's nominees, Democrats spoke forcefully about the injustice of it all. "An up-or-down vote, that is all we ask," said Sen. Tom Daschle in 1999. "Our institutional integrity requires an up-or-down vote," said Sen. Dianne Feinstein the same year. "If our Republican colleagues don't like them, vote against them. But give them a vote," said Sen. Edward M. Kennedy in 1998.
It's not just partisan politicians who switch sides. The New York Times editorialized in 1995, "Now is the perfect moment...to get rid of an archaic rule that frustrates democracy and serves no useful purpose." Nine years later the Times discovered that useful purpose: "The filibuster...is a rough instrument that should be used with caution. But its existence goes to the center of the peculiar but effective form of government America cherishes." The Times did have the good grace to note, "To see the filibuster fully, it's obviously a good idea to have to live on both sides of it.... We hope that acknowledging our own error may remind some wavering Republican senators that someday they, too, will be on the other side and in need of all the protections the Senate rules can provide."
Likewise, E. J. Dionne Jr. of the Washington Post and the Brookings Institution groused about the "anti-majoritarian filibuster rules" that were preventing needed action in 1998 but warned in 2005 that ending the filibuster would be "a radical departure" that "would be disastrous for minority rights."
Immediately after her election to the Senate in 2000, Hillary Rodham Clinton said she was proud "to be on the side of the democratic process working" by calling for an end to the anti-majoritarian Electoral College. Today she staunchly supports the Democrats' effort to prevent "the democratic process" from working in the Senate.
Back in 1993, Cutler wrote, "A strong argument can be made that its requirements of 60 votes to cut off debate and a two-thirds vote to amend the rules are both unconstitutional." Former Senate Republican leader and Reagan White House chief of staff Howard Baker responded, "Doing away with super-majority votes...would topple one of the pillars of American democracy: the protection of minority rights from majority rule. The Senate is the only body in the federal government where these minority rights are fully and specifically protected. It was designed for that purpose by America's Founders."
Republicans were right in those days. They should take advantage of the Democrats' being right today and return to protecting the rights of the minority. No party holds a majority forever, and some day Republican senators will need to use the filibuster again to stop big-government legislation and slow down a Democratic president's most liberal nominees.
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