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Jewish World Review
May 10, 2005
/ 1 Iyar, 5765
Filibusters: The Sandbox Rules
Pressure operates differently on different substances. It reduces coal to diamonds, and politicians to goo. Consider the predicament of the United States Senate, where the honorables have come unglued.
Senate Minority Leader Harry Reid smoked a cherry bomb over the weekend when he told a group of high school juniors that the president was "a loser." Then, emboldened by chortling 16-year-olds, he ad-libbed an apology, not to the president, but to Karl Rove, whom he cast as the real power behind the throne.
As the teens filtered out of the room, the top-ranking Democrat in Washington no doubt began thinking, "What did I just say??!" whereupon he phoned an abject apology to an empty White House (the president is overseas) and released the following statement: "I regret my poor choice of words today, and I have called the White House to apologize. Over the years the President and I have had our share of disagreements, but we've always maintained a respectful and courteous relationship. We owe it to the American people to work as well as we can together on their behalf."
Meanwhile, Republican senators began speaking in tongues and writhing on the floor because they have come to realize that they soon will face a fateful choice: They must decide what they cherish more back slaps from Democratic colleagues or the cherished traditions of the United States Senate.
At issue in both cases Reid's and the fretting Republicans is the fact that Democrats have used the filibuster to prevent the Senate from confirming candidates nominated by the president for high-level judgeships. This has never happened before, and it shatters the longstanding precedent of letting presidents pick the men and women who will fill judicial vacancies.
Many Republicans are ready to lay down the law now. Senate Majority Leader Bill Frist recommended a rule that would guarantee a floor vote for every judicial nominee and prevent the Senate Judiciary Committee from killing nominations by dragging its feet. Both parties accuse the others of practicing this perfidy in previous Congresses. It also provides for what amounts to unlimited floor debate about any nominee, and guarantees the filibuster's free and unfettered use on any other piece of Senate business.
This seems eminently reasonable, but Democrats summarily rejected it. The showdown in turn has focused attention on a handful of GOP senators, who don't want to take sides. Leading the Hamlet Caucus is Nebraska Sen. Chuck Hagel. Hagel fears the Frist proposal will "limit minority rights" in the Senate by hobbling the filibuster. This is a reasonable argument: Senators cherish their traditions, and the filibuster was improvised as a way of making it possible for minority parties to ensure that the world's greatest deliberative body took its time in mulling over important legislative issues.
But note an important distinction: The practice was designed for internal Senate business - not matters involving coequal branches of government such as the approval of judges. No one ever has filibustered a treaty or a cabinet nomination, or any of the other bits of business in which the legislative branch attempts to advise, consent, check or balance the White House. So why do it to judges?
Hagel (in my view) gets his filibuster history wrong when he says both sides have filibustered judges and when he argues the Frist proposal would limit "minority rights."
It gets even more complicated: Hagel, like most, if not all, of his Republican colleagues, also wants to abolish the Democrats' recently invented practice of filibustering judgeships. He declared last week on my show that he believes every judicial nominee deserves a vote on the Senate floor.
In other words, Sen. Hagel wants to limit the filibuster without touching the filibuster. Unfortunately, he can't have it both ways and if he really believes judges should have their day before the court of public opinion, he'll have to side with Sen. Frist by specifying the precise instances in which filibusters may be used.
This gets us to what probably lies at the heart of the Hamlet Caucus's heartburn: Sen. Hagel and others rightly cherish the good old days when senators behaved with decorum, and not like mud-wrestlers. He wants to get along, and he doesn't want to enrage Democratic friends in the World's Greatest Deliberative Body.
Ironically, Frist's proposal of guaranteed votes for every potential judge, regardless of party, will make things better in the Senate, not worse. It will eliminate forever a practice that inflames tempers, indefensibly hobbles a president, and invites endless recrimination. If Republican Senators really want harmony, they ought to make the rules clear, as parents often must do with their quarrelsome young, knowing that once the tantrum subsides, peace can prevail. Likewise, senators, relieved of the pressures imposed by screeching activists, might start getting along again.
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