Political Hay

Filibuster or Bust

Senate Democrats are running out of ammo in their fight against the nuclear option.

By 3.16.05

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WASHINGTON -- How desperate are Democratic senators these days? Desperate enough to place old boy Robert Byrd in the front row at a key gathering, and let him carry on as frantic one-man amen chorus in response to the event's speakers. Move over MoveOn.org, hosts of yesterday's rally against the Bush judicial nominations at the Washington Court Hotel in Northwest. None of you guys can shake a fist and shriek like the silver fox from West Virginia.

Many big guns were dragged out to blast from the podium: Minority Leader Harry Reid, Dick Durbin, Byrd, Ted Kennedy, Barbara Boxer, Chuck Schumer, and Hillary Clinton. Each in turn denounced potential challenges to their promised filibusters of federal judicial nominees. Buoyed by an enthusiastic crowd still sore about an "unjust war" and the Ohio presidential vote, the senators outlined their vision.

Reid insisted that reports of his desire to shut down the Senate over the judges "couldn't be... further from the truth." He was referring to his Tuesday press conference, where he announced that Democrats would block Senate business if judicial nominees are afforded an up-or-down vote, also known as the "constitutional" or "nuclear" option. Reid told the crowd he would rather act on health care, education, the deficit, and energy policy, but unfortunately he has to confront the president's "arrogance of power."

So he is, in other words, prepared to shut the Senate down. He seemed unconcerned that such a move would hurt the Democrats as it did the Republicans in the winter of 1996. He thinks he can peel off Republicans from the majority. As he told the MoveOn activists, "we cannot win this battle... on our own." He urged them to work on winning over "Republicans of good will."

After Reid, the senators stuck to a fairly basic script: denounce "ideologue" judges "out of the mainstream," profess a newfound respect for the Constitution and 200 years of history, and claim that obstructing duly-elected, majority-representing bodies is a principled defense of the minority.

A couple of the senators preemptively apologized for inconsistency. No, not Byrd, who tried filibustering the 1964 Civil Rights Act, and four times "nuked" filibusters himself. Barbara Boxer admitted that when she was young and foolish, a freshman senator in 1994, she "thought it was a good idea to get rid of the filibuster." She wasn't specific, but she may have had in mind her plea for an up-or-down vote on Clinton's surgeon general nominee, Henry Foster. But she apparently forgot similar demands she made as late as 2000.

Dick Durbin must have understood the irony of encouraging obstruction before an organization formed to encourage the Senate to "move on" past impeachment. So he recast MoveOn's history, portraying its beginning as a response to "government focused on petty politics." And now, he said, with People for the American Way's Ralph Neas standing just offstage, monitoring his minions, MoveOn is making "sure the country doesn't sell out to special interest groups."

Even weaker was the Democrats' effort to paint their filibustering as a defense of tradition and history. True, it played well for the crowd and cameras yesterday. But once substance is taken into consideration the strategy fizzles. Bob Byrd can wave his copy of the Constitution and claim it's "under attack," but he can't cite where Article II's "advice and consent" requires a super-majority. "Opponents of the filibuster see no need to rely on Jefferson," among others, Byrd said, even though Thomas Jefferson was in Paris at the time.

Both Byrd and Durbin noted that FDR tried to pack the court but failed because he wasn't greater than the Constitution. Similarly, Thomas Jefferson failed to impeach Samuel Chase, because "the Constitution was more important than even Jefferson." Too bad for both arguments that FDR and Jefferson had in each case acted within the Constitution's enumerated powers.

The senators kept falling back on "200 years of history." Yet the real precedent in this fight, which the Democrats could not bring themselves to mention, is that the true break with history is their denying a judicial nominee who enjoys majority support an up-or-down vote. The filibuster has been a tool for the Senate as a legislative body, but never in its role as a confirming body.

That's why Harry Reid and Hillary Clinton's effort to hide behind Jimmy Stewart's filibustering in Mr. Smith Goes to Washington rang particularly false. The insufferable Smith was opposing pork-filled legislation, not a judicial nomination.

Once the senators invented what's not in the Constitution, they ignored what is: majority rule. They are fighting for minority rights, they said. Dick Durbin complained that the president has "so much power that he could change anything" and all chimed in about the horrors of majority power. The "nuclear" option would turn the Senate into a "rubber stamp for dictatorship," Schumer said, promising "doomsday for democracy." The senators portrayed the filibuster as some last stand against "one party rule," and all that remains of checks and balances. That might have been their most willful display of ignorance. The Constitution established checks and balances between the branches of government. It said nothing about checks and balances between parties, which aren't even mentioned.

The Senate Democrats had fear in their eyes. But they don't fear the fight. Knowing a losing position when they see one, they're swinging blindly but fiercely. Republicans can win, especially since this debate is being argued over areas they own -- history and the Constitution. If they start fighting.

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About the Author

David Holman is a reporter for The American Spectator.