Jewish World Review Nov. 11, 2005 / 9 Mar-Cheshvan, 5766

Paul Greenberg

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To filibuster or not to filibuster, that is the question

http://www.NewsAndOpinion.com | The best thing about the talk of a filibuster against the nomination of appellate Judge Samuel Alito to the U.S. Supreme Court is that so far it's only talk.

A filibuster is one of those good ideas that has a way of going bad. The purpose of extended debate in the U.S. Senate should be to reach a reasoned decision after proper deliberation. But the purpose of the filibuster has become to extend that debate indefinitely. Until no decision can be reached, no vote taken, and another nominee is forced to withdraw from consideration.

Some of us can still remember poll-tax days and the spectacle of Southern senators, desperate to stop civil-rights bills, reduced to reading from the Constitution, the Bible, the phone book . . . . anything to pass the time during one of those all-nighters that so used to amuse Senate-watchers.

If there was any spectacle less enlightening or more profane than listening to Russell Long and John McClellan exchange what were supposed to be witticisms about the Scriptures in order to deny their fellow man his rights, some of us were happy to be spared it.

Designed to prevent any rush to judgment, the filibuster can be used to prevent judgment itself. Like a monkey wrench, it's a useful tool, but not if it's tossed into the works.

As a parliamentary weapon, the filibuster most resembles the boomerang, effective for a short trajectory when wielded by someone who knows its limits, but capable of making the amateur look ridiculous. And putting him in considerable danger when it comes zooming right back at him.

The slickest way to conduct a filibuster is to deny one is being conducted. That's what a small band of partisan senators did when they derailed the nomination of Miguel Estrada to a federal judgeship. Eminently qualified in every way, he showed promise of becoming a great jurist. But he was denied a vote on his merits because a small group of senators demanded copies of the confidential memos he had written as a government lawyer.

No administration mindful of the separation of powers and the independence of the executive branch would have permitted such a fishing expedition into its papers — as those out to deny Miguel Estrada a fair vote had to know. They won, and the loss was the American judiciary's.

Like a yellow light, a filibuster can slow down heedless traffic. Pausing before an important vote in the U.S. Senate may be justified, and few votes in that body are more important than approving or disapproving a lifetime appointment to the Supreme Court of the United States. But there's a difference between a pause in the process and a complete disruption.

How decide whether a filibuster is justified? Wayne Morse, Oregon's great contribution to the genius and eccentricity of the U.S. Senate, once spoke for 22 hours and 26 minutes to call attention to what he considered an awful piece of legislation. But he needed only a few words to sum up the case for the filibuster — and the case against:

"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 to filibuster in the Senate under a program which is aimed to defeat the will of the majority to express itself . . . ."

The trick to pulling off a successful filibuster is knowing when to stop it. Or in some cases, as in the current nomination of The Hon. Samuel Alito to the U.S. Supreme Court, having the wisdom not even to start one. Judge Alito is about to have every clause in every notable decision he's ever handed down examined in hair-splitting detail, filibuster or no.

The only thing a filibuster would accomplish in Judge Alito's case is to get the Democrats labeled the party of obstruction. And Americans, who like to get things done, don't much care for obstructionists. That's how the useful parliamentary maneuver known as the filibuster gets turned into a boomerang.

The filibuster is a kind of ultimate weapon. The threat of using it may deter the opposition from taking some rash action. But actually using it can backfire.

The same caveat applies to the much talked-about proposal to abolish the filibuster simply by changing the Senate rules — a change that would require only a majority vote. Indeed, that idea has come to be referred to as the nuclear option. Employing it would eliminate the danger the filibuster poses to majority rule, all right, but how long before today's majority becomes tomorrow's minority — and has need of some way to protect its rights against a legislative steamroller?

The proposal to abolish the filibuster, like the filibuster itself, needs to be handled with the greatest care. Some weapons were made to be brandished, not used.

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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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