An American Heresy

From that perspective, I have listened with curiosity to some of the statements made during the current debate. For example, I have heard the Senate Majority Leader, who is from my home state and should know better, say that no Court nominee has ever been filibustered before the current president’s term. But I vividly remember not only the dozens of nominees sent to the Senate by President Clinton who were denied a vote and filibustered by various means, I also remember in 1968 when my father was the principal sponsor of another Tennessean — Abe Fortas — who was nominated to be Chief Justice by President Lyndon Johnson. Fortas was filibustered and denied an up or down vote. The cloture vote was taken on October 1, 1968. When it failed by a vote of 45-43, President Johnson was forced by the filibuster to withdraw the nomination.

My father’s Senate colleague and friend from Tennessee, Howard Baker, said during that filibuster, "On any issue, the majority at any given moment is not always right." And no Democrat would take issue with that statement, then or now. It is part of the essence of the U.S. Senate.

This fight is not about responding to a crisis. It is about the desire of the administration and the Senate leadership to stifle debate in order to get what they want when they want it. What is involved here is a power grab — pure and simple.

That makes it so dangerous for our country is their willingness to do serious damage to our American democracy in order to satisfy their lust for total one-party domination of all three branches of government. They seek nothing less than absolute power. Their grand design is an all-powerful executive using a weakened legislature to fashion a compliant judiciary in its own image. They envision a total breakdown of the separation of powers. And in its place they want to establish a system in which power is unified in the service of a narrow ideology serving a narrow set of interests.

Their coalition of supporters includes both right-wing religious extremists and exceptionally greedy economic special interests. Both groups are seeking more and more power for their own separate purposes. If they were to achieve their ambition — and exercise the power they seek — America would face the twin dangers of an economic blueprint that eliminated most all of the safeguards and protections established for middle class families throughout the 20th century and a complete revision of the historic insulation of the rule of law from sectarian dogma. One of the first casualties would be the civil liberties that Americans have come to take for granted.

Indeed, the first nominee they’ve sent to the on-deck circle has argued throughout her legal career that America’s self-government is the root of all social evil. Her radical view of the Social Security system, which she believes to be unconstitutional, is that it has created a situation where, in her words: "Today’s senior citizens blithely cannibalize their grandchildren."

This family of 7 judicial fanatics is now being stopped at democracy’s gates by 44 Democratic Senators, led by Sen. Harry Reid, and a small but growing number of Republican Senators who have more independence than fear of their party disciplinarians. If the rules of the Senate are broken and if these nominees should ever be confirmed, they would, as a group, intervene in your family’s medical decisions and put a narrow version of religious doctrine above, not within, the Constitution. They have shown by their prior records and statements that they would weaken the right to privacy and consistently favor special interests at the expense of middle class America by threatening the minimum wage, worker & consumer protections, the 40-hour workweek, your right to sue your HMO, and your right to clean air and water.

Because of the unique lifetime tenure of federal judges, their legitimacy requires that they be representative of a broad consensus of the American people. Extremist judges so unacceptable to a large minority of the Senate clearly fall outside this consensus.

Yet today’s Republicans seem hell-bent on squelching the ability of the minority in this country to express dissent. This is in keeping with other Republican actions to undercut the legislative process.

And in the filibuster fight they are doing it with utter disregard for the rule of law so central to our democracy. There is, of course, a way to change the rules if they so choose — and that is to follow the rules.

When they decide instead to break the rules and push our democracy into uncharted, uncertain terrain, the results are often not to the liking of the American people.

That’s what happened when they broke precedents to pass special legislation in the Terri Schiavo case — by playing politics with the Schiavo family tragedy. And, the overwhelming majority of Americans in both political parties told the President and the Congress that they strongly disagreed with that extremist approach.

And now, all of the new public opinion polls show an overwhelming majority of the American people are opposed to this current effort to cripple the United States Senate’s position in our constitutional framework by destroying the principle of unlimited debate. But, the congressional Republican leadership and the White House are so beholden to the extremists that they feel like they have to do what they say.

One reason that the American people are upset about what the Republican party is doing, is that while they are wasting time on their extremist agenda, they are neglecting issues like the crisis in the cost and availability of health care, the difficulty middle class families are having in making ends meet, etc.

Our founders understood that there is in all human beings a natural instinct for power. The Revolution they led was precisely to defeat the all-encompassing power of a tyrant thousands of miles away.

They knew then what Lord Acton summarized so eloquently a hundred years later: "Power tends to corrupt and absolute power corrupts absolutely." They knew that when the role of deliberative democracy is diminished, passions are less contained, less channeled within the carefully balanced and separated powers of our Constitution, less checked by the safeguards inherent in our founders’ design-and the vacuum left is immediately filled by new forms of power more arbitrary in their exercise and derived less from the consent of the governed than from the unbridled passions of ideology, ultra-nationalist sentiments, racist, tribal and sectarian fervor — and most of all, by those who claim a unique authority granted directly to them by the Almighty.

That is precisely why they established a system of checks and balances to prevent the accretion of power in any one set of hands — either in one individual or a group because they were wary of what Madison famously called "factions."

Yet today that is precisely what a small group of radical Republicans is trying to do. And they threaten a fundamental break with a system that has served us well for 230 years and has served as a model for the rest of the world.

In the words of columnist George Will, "The filibuster is an important defense of minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the governmental juggernaut. Conservatives, who do not think government is sufficiently inhibited, should cherish this blocking mechanism."

Senator McCain echoed Will’s sentiments, reminding his conservative colleagues, "We won’t always be in the majority… and do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if the Democrats are in the majority?"

The rules and traditions of the Senate all derive from this desire to ensure that the voice of the minority could be heard. The filibuster has been at the heart of this tradition for nearly the entire 230 years of the Senate’s existence. Yet never before has anyone has felt compelled to try to eliminate it.

The proposal from the Senate majority leader to abolish the right of unlimited debate is a poison pill for America’s democracy. It is the stalking horse for a dangerous American heresy that would substitute persuasion on the merits with bullying and an effort at partisan domination.