Jewish World Review May 26, 2005 / 17 Iyar 5765

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Filibustered out: Back where we started | Oh, the grand old Duke of York,

He had ten thousand men;

He marched them up to the top of the hill,

And he marched them down again.

Believe it or not, there are a couple of positive things that have come out of this long march up Filibuster Hill and then down again:

(1) The principle of the filibuster has been preserved, which is assuring. A minority should be able to stall the majority, but not thwart it. The earlier and better definition of the filibuster — extended debate rather than sheer obstruction — has been restored by the deal worked out by a group of bipartisan senators that held the balance of power.

The filibuster is now to be confined to extraordinary occasions, instead of being used the way the Democratic minority was employing it — as an indiscriminate, partisan weapon against a whole slate of 10 nominees to the appellate courts. That kind of blanket, kneejerk opposition to a president's nominations on the appellate level was unprecedented, and should have remained so.

There's no better or more concise guide to the question of when a filibuster should be employed, and when it should not be, than some words from a senator who was no stranger to the filibuster, having conducted one of the longest on record — 22 hours and 26 minutes. Here is what Wayne Morse, the legendary senator from Oregon, had to say on the subject years ago:

"It is one thing to filibuster to stop what is called a 'steamroller' in the Senate, to stop a majority from taking advantage of a parliamentary minority. It is quite another thing to filibuster in the Senate under a program which is aimed to defeat the right of the majority to express itself by way of the passage of legislation . . . ."

What the senator said should go all the more for debates over judicial appointments, which are to be made with the advice and consent of the Senate, not assigned to some kind of eternal parliamentary limbo.

In the end, the Democrats, or at least those still susceptible to reason, agreed to let at least three of the president's nominations — those of Priscilla Owen, Janice Rogers Brown and William Pryor — come to the floor of the Senate.

If judges as controversial as Priscilla Owen and Janice Rogers Brown are going to be allowed an up-or-down vote, it'll be interesting to hear on what possible grounds the opposition proposes to hold up the other nominations. But that is what debate is for — to produce solid reasons for decisions. Or reveal that there are none. Now the Senate can proceed to debate the qualifications of individual judges, not just fuss about the filibuster.

At the same time, the Republican majority has been kept from throwing out the filibuster entirely when it comes to judicial nominations to the higher courts. That's good because the higher the office, the more important it is that senators not rush to judgment. Or even stride briskly to judgment at the majority leader's command.

In short, there are times when a return to the status quo ante bellum can be a happy ending to a bitter war. Even if this latest deal proves only a truce, it is still welcome. It will give both sides time to think rather than just orate.

(2) Did anyone notice that a new Senate tradition was born during this struggle? The Senate now has a long needed counterpoint to the filibuster. It's called the nuclear option or the constitutional option, depending on your political preference. This maneuver re-interprets the rules to allow a majority of the Senate to cut short any filibuster on judicial nominations to the appellate courts. It can be rolled out threateningly any time the filibuster is being used to stop the U.S. Senate in its tracks rather than just slow it down.

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Let us celebrate; this is like discovering a direct passageway in an old Victorian house full of twisting corridors and treacherous detours; you can never tell when it might come in handy.

The introduction of this new parliamentary twist was almost inevitable; a healthy political system will not be stymied forever. It's almost a law of nature, like every action producing an equal but opposite reaction. The filibuster no longer trumps every other parliamentary maneuver, which is a good thing. The balance of power in the Senate remains just as it should be in a system of checks and balances: uncertain. Absolute clarity about where power resides is the hallmark of dictatorships, not republics.

Leave it to John McCain, in his self-congratulatory way, to overstate what's happened here: "We have reached an agreement to try to avert a crisis in the United States Senate and pull the institution back from a precipice."

Senator, this was no precipice. It was just another little bump in the uneven road called democracy. The Senate has simply come back to where it started in this nigh-endless debate over the filibuster and its legitimate and illegitimate uses. But it hasn't come back exactly to where it started. Because now a whole new anti-filibuster weapon has been introduced into the parliamentary equation and stands ready to be used if needed. A healthy balance has been restored.

What the late great Daniel Boorstin called "The Genius of American Politics" in his little book of that name has worked its magic again. Consensus is back, at least till the next bump. Hey, nobody ever claimed a republic was the clearest form of government; it can lay claim only to being the best.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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