Jewish World Review March 24, 2005 / 13 Adar II 5765
Of life, death and filibusters
Hard cases don't just make bad law. They turn principled stands upside down and inside out. At the end of the process, politicians who were on opposite sides of some great question have done a complete turnaround and come out on the opposite sides of the issue. Dosie-do and all change places.
But it doesn't seem to bother the more strident politicos at all. They don't miss a beat. They just go right on delivering eloquent speeches full of spread-eagle oratory and historical precedent except, of course, that they're now against what they were once for, and vice-versa. No matter what Hollywood says, there's no better show than American politics.
Consider first the filibuster now being conducted against this president's latest judicial appointees. By refusing to end debate, which would take a super-majority of 60 votes, a minority of U.S. senators has managed to deny these nominees a straight up-and-down vote, and confirmation.
It's enough to give the filibuster a bad name, and some of us still have a soft spot for it, at least in principle. It allows a sizable minority to keep a bare majority from imposing its will on some matter the minority considers vital, or at least of great importance.
Yes, the filibuster has long been abused. It used to be synonymous with the South's determination to defeat any and all civil rights acts that threatened the racial caste system that dominated these latitudes once upon a shameful time. But in principle, that same filibuster could be used to protect rights worthy of being protected.
A republic with a long history tends to develop these nooks and crannies in its political structure the filibuster, the Electoral College, lifetime tenure for federal judges . . . obscure traditions that, however anti-democratic they seem, can prove essential when We the People become We the Mob bent on destroying others' rights, and therefore, soon enough, our own.
When confronted by a clash between principle and practice, is there any single, guiding principle that might shed some light on this debate, and lead politicians to reason?
Yes. It is called moderation. And it is indispensable to republican government.
Even if the filibuster is being abused to keep good judges off the bench, the majority should not destroy the principle itself on a point of order, which is what the Republicans in the Senate are considering. (This tactic has been well named the Nuclear Option, for it would leave the filibuster vaporized.)
It's an option the Republicans should have the wisdom to forgo, for the good reason that they themselves will surely be in the minority some day and have use for an old-fashioned filibuster when they feel their rights are threatened.
At the same time, Democrats should not roll out the filibuster against any and all of these conservative nominees but pick and choose which most offend them, and limit their use of this ultimate parliamentary weapon to those few.
That way, the filibuster would be preserved in principle while in practice the best of these nominees like Alabama's Bill Pryor would be given an opportunity to serve their country.
Maybe justice might even be done in the case of Miguel Estrada, who was treated shamefully by the Democratic minority.
Power ought to be used with restraint in a republic or it ceases to be a republic.
Which brings up the troubling case of Terri Schiavo, who is now being starved to death. Excuse me, whose persistent vegetative state is being ended. (Vocabulary is all in this wrenching debate.)
Once upon a time many liberals insisted that the full power of the federal government be brought to bear to enforce the civil rights of American citizens. Now that Republicans in Congress have moved to do what they can to save the most basic of rights, the right without which all the others are meaningless, the right to life, the Democratic minority raises the soiled old banner of States' Rights and accuses the Republican majority of ignoring the constitutional boundaries between state and federal governments.
Where is the one principle that might offer some light in this case? My nomination is an old one, a very old one: When in doubt between the counsels of hope and despair, between life and death, Choose life.
As that least philosophical of politicians, our current president, put it when he signed Congress' last-minute attempt to avert the Florida courts' severe decree: When in doubt, err on the side of life.
We can always kill, and G-d knows we do it often enough. But the rush to judgment has continued even after Congress intervened. The most troubling aspect of many in the matter of Schiavo v. Angel of Death is that we did not let the appellate process play out before we began executing the death sentence.
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