Mr. Smith Goes Under the Gavel

The New York Times
November 28, 2004

Mr. Smith Goes Under the Gavel

Republicans control the White House, both houses of Congress and the Supreme Court. But the greater their power, the more they have focused on one of its few limits: the Senate filibuster. They are so concerned that Democrats will use the filibuster to block a few far-right judicial nominees that they are talking about ending one of the best-known checks and balances in government. Rather than rewrite the rules of government for a power grab, Republicans should look for ways to work with Democrats, who still represent nearly half the country.

The filibuster is almost as old as America itself. In 1790, senators filibustered to prevent Philadelphia from becoming the nation's permanent capital. In the centuries since, senators have used their privilege of unlimited debate to fend off actions supported by a bare majority of the Senate, but deeply offensive to the minority. In 1917, the Senate adopted a formal resolution allowing senators to delay actions unless debate is cut off by a supermajority, which Senate rules now set at 60 votes.

The filibuster has a storied place in the nation's history, and in popular culture. During the Great Depression, Huey Long of Louisiana fought off a bill he opposed by reciting recipes for fried oysters and potlikker. In the 1939 film "Mr. Smith Goes to Washington," Jimmy Stewart triumphed over crooked politicians with a 23-hour filibuster. Filibusters were used, notoriously, by Southern senators to fight civil rights legislation, notably the Civil Rights Act of 1964. But even during those dark days, the Senate considered the right to filibuster sacrosanct.

Judicial nominees have never been immune from filibusters. When Republicans opposed President Lyndon Johnson's choice for chief justice, Abe Fortas, they led a successful filibuster to stop him from getting the job. More recently, in the Clinton era, Republicans spoke out loudly in defense of their right to filibuster against the confirmation of cabinet members and judicial nominees. Republican senators, including Rick Santorum of Pennsylvania and Mike DeWine of Ohio, used a filibuster in 1995 to block President Bill Clinton's nominee for surgeon general. Bill Frist, now the Senate majority leader, supported a filibuster of a Clinton appeals court nomination. Senator Christopher Bond, a Missouri Republican, was quoted in The St. Louis Post-Dispatch in 1993 saying, "On important issues, I will not hesitate to join a filibuster."

Now that Republicans are doing the appointing, they see things very differently. Dr. Frist recently declared on "Fox News Sunday" that preventing votes on judicial nominees is "intolerable." Among the proposals Republicans are floating is the so-called nuclear option. According to Senate rules, changing the filibuster rule should require a two-thirds vote. But in the "nuclear option," Vice President Dick Cheney, as Senate president, would rule that filibusters of judicial nominees could be ended by a simple majority.

That would no doubt put the whole matter in the courts, an odd place for the Republicans - who are fighting this battle in the name of ending activist courts - to want it resolved. The Republicans would have a weak case. The Constitution expressly authorizes the Senate to "determine the rules of its proceedings." That is precisely what it has done.

If it came to a vote, it is not at all clear that the Republicans would be able to command even a majority for ending the filibuster. Senators appreciate their chamber's special role, and much of its uniqueness is based on traditions like the filibuster. Senator Charles Schumer, the New York Democrat who has led the opposition to extremist judicial nominees, says as many as 10 Republican senators could vote against changing the rule.

The Republicans see the filibuster as an annoying obstacle. But it is actually one of the checks and balances that the founders, who worried greatly about concentration of power, built into our system of government. It is also, right now, the main means by which the 48 percent of Americans who voted for John Kerry can influence federal policy. People who call themselves conservatives should find a way of achieving their goals without declaring war on one of the oldest traditions in American democracy.