An American Heresy

Over sixty years ago, in the middle of the Second World War, Justice Jackson wrote: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

His words are no less true today.

The historic vulnerability of religious zealots to subordinate the importance of the rule of law to their ideological fervor was captured best in words given by the author of "A Man for All Seasons" to Sir Thomas More.
 
When More’s zealous son-in-law proposed that he would cut down any law in England that served as an obstacle to his hot pursuit of the devil, More replied: "And when the last law was cut down and the devil turned round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast-man’s laws, not God’s — and if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?"

The Senate leaders remind me of More’s son-in-law. They are now proposing to cut down a rule that has stood for more than two centuries as a protection for unlimited debate. It has been used for devilish purposes on occasion in American history, but far more frequently, it has been used to protect the right of a minority to make its case.

Indeed it has often been cited as a model for other nations struggling to reconcile the majoritarian features of democracy with a respectful constitutional role for minority rights. Ironically, a Republican freshman Senator who supports the party-line opposition to the filibuster here at home, recently returned from Iraq with an inspiring story about the formation of multi-ethnic democracy there. Reporting that he asked a Kurdish leader there if he worried that the majority Shiites would "overrun" the minority Kurds, this Senator said the Kurdish leader responded "oh no, we have a secret weapon…. [the] filibuster."

The Senate’s tradition of unlimited debate has been a secret weapon in our nation’s arsenal of democracy as well. It has frequently serves to push the Senate-and the nation as a whole-toward a compromise between conflicting points of view, to breathe life into the ancient advice of the prophet Isaiah: "Come let us reason together"; to illuminate arguments for which the crowded, busy House of Representatives has no time or patience, to afford any Senator an opportunity to stand in the finest American tradition in support of a principle that he or she believes to be important enough to bring to the attention of the nation.

In order to cut down this occasional refuge of a scoundrel, the leadership would cut down the dignity of the Senate itself, diminish the independence of the legislative branch, reduce its power, and accelerate the decline in its stature that is already far advanced.

Two-thirds of the American people reject their argument. The nation is overwhelmingly opposed to this dangerous breaking of the Senate’s rules. And, so the leadership and the White House have decided to call it a crisis.

In the last few years, the American people have been told on several occasions that we were facing a dire crisis that required the immediate adoption of an unusual and controversial policy.

In each case, the remedy for the alleged crisis was an initiative that would have been politically implausible at best — except for the crisis that required the unnatural act they urged upon us.

First, we were told that the nation of Iraq, armed to the teeth as it was said to be with weapons of mass destruction, represented a grave crisis that necessitated a unilateral invasion.

Then, we were told that Social Security was facing an imminent crisis that required its immediate privatization.

Now we are told that the federal judiciary is facing a dire crisis that requires us to break the rules of the Senate and discard the most important guarantee of the deliberative nature of Senate proceedings.

As with the previous "crises" that turned out to be falsely described, this one too cannot survive scrutiny. The truth is that the Senate has confirmed 205 or over 95% of President Bush’s nominees. Democrats have held up only ten nominees, less than 5 percent. Compare that with the 60 Clinton nominees who were blocked by Republican obstruction between 1995 and 2000. In fact, under the procedures used by Republicans during the Clinton/ Gore Administration, far fewer than the 41 Senators necessary to sustain a filibuster were able to routinely block the Senate from voting on judges nominated by the president. They allowed Republican Senators to wage shadow filibusters to prevent some nominees from even getting a hearing before the Judiciary Committee. Other nominees were victims of shadow filibusters after receiving a hearing and were not allowed a committee vote. Still others were reported out of committee, and not allowed a vote on the Senate floor.

To put the matter in perspective, when President Clinton left office, there were more than 100 vacant judgeships largely due to Republican obstructionist tactics. Ironically, near the end of the Clinton-Gore administration, the Republican chairman of the Senate Judiciary Committee said: "There is no vacancy crisis and a little perspective clearly belies the assertion that 103 vacancies represent a systematic crisis."

Comically, soon after President Bush took office, when the number of vacancies had already been reduced, the same Republican committee chairman sounded a shrill alarm. Because of the outstanding vacancies, he said, "We’re reaching a crisis in our federal courts."

Now, the number of vacancies is lower than it has been in many years: 47 vacancies out of 877 judgeships — and for the majority of those vacancies, the President has not even sent a nominee to the Senate. Yet still, the Republican drive for one-party control leads them to cry over and over again: "Crisis! Crisis in the courts!" It is hypocritical, and it is simply false.

Republicans have also claimed quite disingenuously that the filibustering of judicial nominees is unprecedented. History, however, belies their claim. I served in the Senate for eight of my 16 years in Congress — and then another 8 years as President of the Senate in my capacity as Vice President. Moreover, my impressions of the Senate date back to earlier decades — because my father was a Senator when I was growing up.

Today’s Republicans seem hell-bent on squelching the ability to express dissent…