The Republican leaders in the Senate do not have to make the false choice between endless toleration of Democratic filibusters that enfeeble their majority and the so-called “nuclear option” — a ruling that filibusters of judicial nominations are unconstitutional — which will set off partisan wrangling for the balance of the Bush tenure.
It is absurd to try to tell the American people why filibusters of judicial nominations violate the Constitution while those of presidential nonjudicial appointments and of regular legislation do not. The American people are going to see the denial of the right of unlimited debate as the equivalent of FDR’s court-packing plan, which doomed the second term of his presidency to utter failure (he had a pretty good third term, winning the war).
The better way to proceed is to make the filibuster radioactive politically by letting the Democrats talk themselves to death. Give them enough rope and they will hang themselves by their vocal cords.
Frist just needs to end the “virtual” filibuster and make the Democrats stage a real one, replete with quorum calls, 24/7 sessions and truly endless debate covered word for word by C-SPAN for all the nation to see — and ridicule.
Frist should bring up a judicial nomination of little consequence for the nation — say Charles Pickering — and let the Democrats explain, at tedious length, why they are tying up the entire nation over a judgeship for Mississippi. While the public would possibly tolerate a filibuster over a Supreme Court nomination or over a particularly important piece of legislation with enormous consequence, they would never allow a filibuster over so inconsequential an item, and the backlash would be fierce.
To force the Democrats to filibuster over such a matter would be akin to the way President Clinton forced the Republicans to shut down the government in the budget fight. In the era of 24-hour news and cable TV, the Democrats will find that they cannot stage a real, red-blooded filibuster without hurting themselves politically each day they talk.
A filibuster would attract wide notice. Bring the cots into the Democratic and Republican antechambers and stage quorum calls throughout the night, as in the old days of civil-rights legislation, and the nation will notice. The Democrats will leave America to wonder why they are spending all of their time debating a judgeship in Mississippi when they are not addressing the problems of healthcare, energy, gas prices, the economy, Social Security reform and the preservation and expansion of Medicare. The endless debate over so minor an item will make the country disgusted and will expose all to the true perils of unbridled partisanship in Washington.
When vote after vote for closure fails, usually by the same deadening margin, the voters will increasingly see the case for squelching the filibuster and then the nuclear option would be welcome by the nation.
The Republican leaders, and the Democratic majority leader before them, have allowed the filibuster to be rehabilitated in the public mind by agreeing not to stage one. The gentlemanly filibusters of the modern era, where each side concedes unless one has 60 votes, have permitted virtual filibusters that incur no public wrath.
But let’s remember that it was the specter of the Senate’s being tied in knots by Sen. Richard Russell (D-Ga.) and his gang that doomed the South to accepting civil-rights legislation. When Hubert Humphrey and his allies had to sleep in the Senate chamber so that minorities could get the right to vote, America saw the excesses to which the South would go to deny minorities their rights.
Frist and the GOP need to let the Democrats demonstrate how noxious the filibuster really is before they try to explain to America why they are curtailing it. And the best way to do that is to let the Democrats deploy their weapon. Call their bluff. And let ’er rip!
Morris is the author of Rewriting History, a rebuttal of Sen. Hillary Rodham Clinton’s (D-N.Y.) memoir, Living History.