Wednesday, April 1, 2009

Then and Now

Even as some Democrats are now expressing their possible openness to using the budget reconciliation process to bypass a filibuster on health-care reform, a number of them were very critical of the so-called "nuclear option" of 2005, which would have ended the use of filibusters for judicial confirmations.

Sen. Patty Murray (D-WA), a member of the Senate Budget Committee and a possible member of this year's House-Senate budget conference, now says that "everything's on the table." Sen. Murray came out strongly against the "nuclear option" in 2005. Back then, she warned that the destruction of the filibuster would weaken the institutional power of the Senate and betray some of the Senate's key aims, especially the protection of minority rights:

But what's so concerning about this recent rhetorical assault is that it's being backed by action – action that has nothing to do with judges and everything to do with increasing Republican power at the expense of the Constitution.

Republicans are trying to increase their power by ignoring rules dating to our country's founding. They want to push through radical judicial nominees who will serve a lifetime on the bench by eliminating a two-hundred-year-old American rule allowing each of us in the Senate to speak on behalf our constituents and fight for the ideals we hold dear.

We had an election this past year, and it's true that Republicans ended up with the majority in this body. But that does not mean that half the country lost its voice. That does not mean that tens of millions of Americans have no say in our democracy...Mr. President, in reality, this isn’t about judges. This isn't about a Senate procedural change. This is, plain and simply, a power grab and an effort to dismantle the system of checks and balances our Founding Fathers created.

Without that system, the U.S. Senate would become a rubber stamp for the president.

It would allow whichever political party is in power – Republican or Democratic - to have all the say over our nation’s courts. I will not stand for that.

This is a basic argument about the future of the Senate and how we will conduct our business. I believe in giving the people a voice, in standing up for those who sent me here, and in protecting the rights of minorities everywhere.

One of the first things every child is taught about the American government is the separation of the three braches. This separation, and the checks and balances that come with it, are fundamental to the greatest system of government ever created. This system is worth protecting, and that's exactly what I and so many of my colleagues intend to do...

Mr. President, recent comments by advocates on the other side, and even by some elected officials, have left me worried about the future of the independent judiciary. It seems many in this country are intent on running roughshod over the Constitution, bent on misusing their power to destroy fundamental principles of democracy.

That's not how America works. It is not what our founding fathers intended. In our democracy, no single person and no single political party may impose extreme views on the nation. The Constitutional system of checks and balances was set up for a reason. It has worked for two centuries. There is no reason to destroy this fundamental principle now.

Sen. Ron Wyden (OR) seems to be on the fence about whether he'd vote to use the reconciliation process on health-care, though he says he's hoping that process won't have to be used. In the past, Sen. Wyden has, as is his right, filibustered about oil prices and threatened to filibuster a new FISA authorization. Sen. Wyden used the filibuster as a way of fighting for his position.

Perhaps some of the most striking words in defense of the filibuster and Senate privileges have come from Sen. Russ Feingold, another member of the Budget Committee. In 2005, Feingold declared:

But the Constitution did not set up the Senate to be a majoritarian body. And that is what why renaming the nuclear option as "the constitutional option" is so wrong. The Constitution allows citizens from smaller states who could be easily outvoted in a majoritarian legislature, like the House, to have the same power in the Senate as citizens of larger states. This is not a minor provision, either. The founders clearly didn't think so, because they made it the only provision in the Constitution that cannot be amended. They designed the Senate to be an important bulwark against majoritarian pressures.

And the Senate rules from the very beginning have granted protections for the minority. There was no cloture rule at all until this century and the rule didn't cover nominations until 1949. While the cloture rule has changed over time, sometimes offering more protection to the minority and sometimes less, those rule changes have always been accomplished in accordance with the Senate rules. Until now. Until the demand for power trumped principle.

The Framers intended the Senate to act as a check on the whims of the majority, not to facilitate them. I will not pretend that the Senate has always been on the right side of history. At times, most notably during the great civil rights debates of the 1950s and 60s, Senators have used the powers given them to block vital, majority-supported legislation. But, notwithstanding those dark moments, the Senate has also served throughout the history of this republic as a place where individuals with different beliefs and goals are forced to come together to work for the common good. By empowering the minority, the Framers created a body that that has served this country well.

To continue down the road we are now on will be to irretrievably change the very character of the Senate, and irretrievably weaken the institution. Without the unique feature of extended debate, the Senate will be much less able to stand up to the President or to cool the passions of the explicitly majoritarian House. I know that my colleagues see themselves as guardians of this remarkable institution, as I do. When we leave the Senate -- and, some day, somehow or another, all of us will -- it is our responsibility to ensure that we do not leave this institution weakened. As Senators, we tend to see ourselves as pretty important, but none of us -- and certainly no judicial nomination -- is more important than the United States Senate.

Many Democrats---including Sen. Robert Byrd (WV), Sen. Tom Carper (DE), Budget chair Sen. Kent Conrad (ND), and Sen. Max Baucus (MT)---have expressed grave reservations about the use of the budget reconciliation process to force major policy reforms on the nation. Those Democrats who are wavering may do well to look at the words of their colleagues from four years ago and ask if their concerns about minority protections, Senatorial independence, and public consensus are any less relevant or true now (even if you don't agree with the filibustering of nominees---as opposed to laws---on grounds of principle).

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