Force a real filibuster, if necessary

Jack Kemp
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Posted: Nov 15, 2004 12:00 AM

On Nov. 2, the voters gave President Bush a clear mandate to govern for four more years. And, while many debate what exactly that mandate actually is, one is readily apparent: do not obstruct qualified judicial nominees. Senate Democrats, led by minority leader and obstructionist-in-chief Tom Daschle went down in defeat, and Republicans picked up four seats.

During President Bush's first term, Democrats consistently blocked many qualified judicial nominees from even getting a vote on the Senate floor. Senate Democrats took advantage of every parliamentary maneuver available, including the filibuster, to obstruct President Bush's judicial nominations even for extremely qualified candidates such as Priscilla Owens and Miguel A. Estrada. Following the revelation of questions about Chief Justice William Rehnquist's health, the issue is now on the front burner again.

The judicial filibuster is bad public policy, it turned out to be bad politics for Democrats as well, but it is not unconstitutional.

Republicans, including myself, like the idea of requiring a supermajority vote in Congress to raise taxes, which I think is prudent public policy. In 1993, Senate Republicans used the filibuster to defeat the ill-conceived Clinton "stimulus package," which contained the infamous BTU tax. Isn't it ironic, though, that some of us are now even suggesting that the filibuster is "unconstitutional" when it is used to thwart a vote on a judicial nominee?

The filibuster rules of the Senate do not need to be changed, they simply need to be honored in practice rather than merely in the abstract. Under Majority Leader Mike Mansfield, a "tracking" system devised by then Majority Whip Robert Byrd was put into place. Tracking allows the majority leader - with unanimous consent or the agreement by the minority leader - to have more than one bill pending on the floor as unfinished business.

Before the introduction of tracking, a filibuster would stop the Senate from moving on to any other legislative activity. With a two-track system, the Senate simply puts aside the filibustered measure and moves on to other legislation. The result of this tracking system has been an explosion in the threat and use of filibusters. During the 19th century there were only 23 filibusters. Between 1970 and 1994 there have been 191 filibusters.

As Sen. Robert Byrd, D-W.Va., acknowledges, today it's the threat of a filibuster that matters. Mr. Byrd calls it a "casual, gentlemanly, good-guy filibuster. ... Everybody goes home and gets a good night's sleep, and everybody protects everybody else." Mr. Byrd may have more accurately portrayed this pseudo-filibuster as obstructionism on the cheap.

If Democrats were forced to stage a real filibuster, which would be more difficult with a larger Republican majority, they would have to follow the fairly stringent rules for carrying on a filibuster. Conversely Republicans would be required to maintain a quorum to force the filibuster to continue indefinitely, lest the Democrats end debate and go home for a good night's rest. During the civil-rights debate, senators were seen in the Senate Chamber in bathrobes, and cots were set up in the cloakrooms. And, if the majority needed to maintain a quorum, they could summon the sergeant at arms to arrest senators who weren't present in the chamber.

Following a few days of a real forced filibuster, most Democrats would peel away from their irresponsible obstructionism one-by-one, and the public would see on the nightly news exactly who is really obstructing the business of the people, which would be particularly acute in the case of a Supreme Court nominee.

Therefore, Senate Republicans should forget procedural shenanigans, break out the cots and arrest a few senators, if necessary. There's no better way to show support for the president's nominees than to actually fight for them rather than staging an ersatz fight and letting them languish for years in political purgatory.