Judicial Filibusters: Defending the Practice

In June 1962, after Southern conservatives in the United States Senate filibustered to death a Kennedy administration voting rights bill, editorials in newspapers north of the Mason-Dixon Line vigorously attacked the use of unlimited debate to kill a civil rights measure without allowing it to come to a vote.

But in the chorus of high-minded indignation, one unexpected voice rose in defense of the reviled filibuster. It came in the "Speaking Out" section of the Saturday Evening Post. The author, Hodding Carter, was the editor of the Delta Democrat-Times in Greenville, Miss. He had won a Pulitzer Prize for his valiant attacks on racial segregation, yet he lent his voice to the defense of the very weapon used by opponents of civil rights in the Senate.

Carter's point was a simple one. He believed that open debate is "man's greatest political invention," and that "the United States Senate is the last legislative body in the world where unlimited debate is possible." He also observed that filibusters rarely delay for long measures that enjoy the broad support of the American people.

But it is individuals, not laws, who are the heart of the latest debate over Senate filibusters. Democrats threaten to use the device to block votes on seven people President Bush has re-nominated to the U.S. Court of Appeals, characterizing the nominees as extreme in their judicial philosophies.

Senate Republicans are considering a procedural move of their own: replacing the super-majority of 60 votes now required to shut down a filibuster with a 51-vote majority. Ominously dubbed "the nuclear option," Republicans say the plan is small scale, applying only to judicial nominations, not legislation. But the fallout would paralyze the Senate.

The logic behind the plan is curious because judges are forever; laws are not.

Once confirmed by the Senate, federal judges hold their positions for life. If a president chooses wrongly, there is no remedy short of impeachment, a difficult and rare process. By contrast, any statute is subject to repeal and, indeed, many laws are phased out with sunset provisions. Logic suggests the burden should be heaviest and the scrutiny toughest on judicial nominees.

It is also important to recognize that while the filibuster is invariably the instrument of the minority, it is not specifically a partisan weapon. It is part of an array of distinctive senatorial privileges used to slow down judicial appointments.

When Republicans enjoyed a majority during Bill Clinton's presidency, they simply outvoted Democrats on the Judiciary Committee and blocked nominees there, without a full Senate vote. If that option didn't look promising, the GOP could "slow walk" nominees with tools ranging from the "hold" (a kind of mini-filibuster to slow down or block nominations) to simply refusing to hold confirmation hearings. There is also the venerable practice of senatorial courtesy, used liberally by both parties, that gives senators a virtual veto on nominees who come from their state or will hold office there.

Senators delight in drawing distinctions between their chamber of the Congress and the House of Representatives where the majority almost never fails to work its will and the power of a single individual, other than a party leader, to affect the legislative process is minimal. Debate in the House can be spirited, but the outcome is rarely in doubt. The Senate is still the place where forgone conclusions are not the norm and the individual still matters.

Senators enjoy a remarkable degree of power to shape the federal judiciary. It is, in large measure, what makes a senator a senator. Who would benefit from an abdication of this power now? A majority leader who, by his own choice, will not be around after 2006? A president who, like all presidents, prefers a docile Congress? The collection of judicial nominees who are, on the whole, a rather undistinguished lot?

Even under the lash of party discipline, senators would be wise to cling tightly to their individual prerogatives and pull back from invoking the parliamentary ruling that would strip them of a power that virtually defines them as senators.

It is especially important now -- with all three branches of the federal government in the hands of a single party -- that the principle of checks and balances be invested with the broadest possible meaning. The one place where minority voices are still heard is the Senate. It must be allowed to debate, to delay, and yes, even to obstruct.