Ross Mackenzie

What are some truths about the filibuster, blameworthiness and the nuclear option?

Right now, in the blandest terms, the situation in the Senate seems to be this: Democrats have stymied votes on about a dozen Bush nominees to the appellate courts - stymied votes on some of those nominees for years, some indeed for so much of the president's first term that they withdrew their names from consideration.

With the Republicans having re-elected President Bush and gained seats in both houses of Congress last November, the president has resubmitted the names of many of the stalled nominees. The Democrats are threatening to filibuster them. Tired of the delays, the Republicans are threatening to change the Senate rule on filibusters so that only 51 votes (a majority) would be required to break a filibuster on judicial nominees, as opposed to the current 60-vote requirement.

Democrats answer that in the face of such a change in the filibuster rule, they will shut down the Senate's ability to conduct any business.

As to blame, both parties can boast an ample share.

The filibuster was used most effectively, and for the longest period, by Southern Democrats to thwart civil rights legislation - those Democrats preferring the term "extended debate" to the pejorative "filibuster."

Off and on since the mid-1950s, the filibuster - or the threat of it - has been used on a variety of issues, but perhaps only once regarding a judicial nomination, on that of Abe Fortas to be Chief Justice of the Supreme Court. Fortas never took that seat. Perhaps the master of stymieing judicial nominations was Jesse Helms. The filibuster was not his tool of choice. Rather, he employed the Senate device of "holds" and just sat on unpalatable nominations - as a chicken sits on eggs that never hatch.

So there's plenty of blame for both parties. Now we have the spectacle of (a) Democratic Senators such as Robert Byrd deploring the very idea of changing the filibuster rule, when during the years of Democratic dominance he was the master of changing Senate rules to enable Democratic ambitions of the moment. And we have the spectacle of (b) Democratic Senators such as Patrick Leahy supporting the 60-vote filibuster rule now, but having said on for instance June 18, 1998: "I have stated over and over again on this (Senate) floor that I would . . . object and fight against any filibuster on a judge."


Ross Mackenzie

Ross Mackenzie lives with his wife and Labrador retriever in the woods west of Richmond, Virginia. They have two grown sons, both Naval officers.

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