From the February 24, 2003, issue of National Review.
As he seeks to get his ambitious agenda through Congress, President Bush is going to learn that his chief legislative opponent isn’t Tom Daschle or Nancy Pelosi. The legislative roadblock that threatens to derail his initiatives and nominations is Senate Rule XXII, the provision allowing a senator to mount a filibuster, thereby blocking a vote, unless a supermajority of 60 senators invokes cloture to end the protest. In recent Congresses, the mere threat of mounting a filibuster has been sufficient to prevent a simple majority of senators from acting. The opening volley in the liberal assault on the GOP agenda is the threatened filibuster of judicial nominees.
Democrats have disruptive designs on much of the Bush agenda, but since the announced offensive against fully qualified judicial nominees is unprecedented, so too should be the response of the Senate’s new majority. A threatened filibuster alone should not allow 41 senators to block the confirmation of federal judges. Rather than surrender preemptively to the need for 60 votes to confirm a judge, Senate majority leader Bill Frist should call the Democrats’ bluff, and bring back the traditional filibuster. Let Kate Michelman, leader of the abortion lobby, man the cots and wipe the brows of weary Democrats forced to talk ‘round the clock.
In response to Democrats’ threats to filibuster Miguel Estrada’s confirmation, Sen. Orrin Hatch has vowed to make them put up or shut up. Hatch, who heads the Senate Judiciary Committee, recently told GOP colleagues that, as far as he is concerned, “If they want to talk about him for two weeks, they can talk about him for two weeks.” If Bill Frist shares Hatch’s welcome resolve, it would be a sharp departure from the Senate’s present practice, which allows a single senator to disrupt legislation simply by asserting his intent to mount a filibuster.
The notion of the drama-laden, longwinded Senate filibuster is an outdated one arising from Hollywood movies and the bitter civil-rights debates of the past. In Mr. Smith Goes to Washington, the idealistic newcomer halts Senate action for 23 hours while he rails to the point of exhaustion against congressional corruption. Eighteen southern Democrats and one Republican conducted the longest filibuster in history when they blocked action on the 1964 Civil Rights Act for 75 days. The longest lone filibuster was staged by Strom Thurmond, who prepared for the ordeal by dehydrating himself in a sauna before taking to the Senate floor for over 24 hours to block a vote on a 1957 civil-rights bill.
After the adoption of Rule XXII in 1917 (at the behest of President Wilson, who was frustrated by the chamber’s tolerance for endless debate), senators intent on blocking action by talking non-stop could be silenced by a two-thirds vote that invoked cloture, thereby limiting debate on pending legislation. The new rule was used in 1919 to end a filibuster against the Treaty of Versailles. But despite Rule XXII, filibusters remained an effective tool to block Senate action owing to the difficulty of rallying a two-thirds vote. An increasingly crowded Senate schedule and persistent frustration over filibuster delays led senators in 1975 to reduce the supermajority to the current three-fifths.
In the 1960s, the Senate averaged just two filibusters a year. (That is to say, actual filibusters, not just threatened ones.) The 1980s saw the filibuster threat used about 90 times, including in 1989 to block a capital-gains tax cut. By the early 1990s there was an average of 15 a year. In 1993, majority leader George Mitchell complained, “Right now in this Senate there are six different filibusters going on at one time.”
The “modern,” “silent,” or “gentleman’s” filibuster might more accurately be called the “lazy man’s” filibuster. It has become so trivialized that there is no longer any need to silence an objecting senator. Once he signals his intent to filibuster, a senator is free even to leave town if he chooses, confident that he has triggered the need for 60 votes. The Senate will generally move on to other business, without any requirement that he be prepared to follow through on his filibuster threat. Sen. Robert C. Byrd has described the cozy arrangement as a “casual, gentlemanly, good-guy filibuster . . . Everybody goes home and gets a good night’s sleep, and everybody protects everybody else.”
But when a Republican minority blocked action on the Clinton agenda, Democrats cried foul, going so far as to launch a campaign in 1994 dubbed “Action, Not Gridlock” to abolish the modern filibuster. When the balance of forces changed in the Senate later in 1994, so too did liberals’ rules of engagement and their view of the misuse of this particular parliamentary tactic. In early 1995, only 19 of 47 Democratic senators voted in favor of an unsuccessful attempt to get rid of the filibuster. “Gridlock, Not Action” had become the battle cry of the new Democratic minority now committed to blocking Republican initiatives.
Given the Senate’s cherished respect for the rights of the minority — a status either party is just one election away from — the filibuster is unlikely to be abolished. As then-majority leader Trent Lott pointed out in 1999, “I might not much like it now, but someday I might like it more.” And conservatives have reason to like a legislative maneuver that has been used effectively to block tax hikes, ill-considered campaign-finance reform, and Hillary Clinton’s health-care extravaganza. Still, the modern filibuster has been abused to the point that, unless an initiative is protected by special rules generally reserved for budget matters, virtually nothing can happen without a 60-vote majority in the Senate. Some behavior modification is in order to preserve an important tool that is too easily abused.
“In general, regardless of who’s using them or how they’re used, this is not supposed to be a procedure that sets up a supermajority hurdle routinely,” explains Norm Ornstein, congressional scholar at the American Enterprise Institute. “It’s supposed to be something reserved for an issue of great national moment when a minority feels intensely about it.” There will be little interest in restoring the traditional filibuster across the board because the burden placed on senators forced to meet its round-the-clock demands conflicts with a modern, “family-friendly” Senate.
But, with Kate Michelman demanding that Democratic senators filibuster any judicial nominee who fails to give full-throated support to abortion rights, and People for the American Way’s Ralph Neas pledging “judicial Armageddon” to block the approval of the president’s nominees, Republicans should be expected to fight back with the most powerful weapon in their arsenal. It is not too much to ask that Republicans inconvenience themselves on behalf of such consequential matters as a ban on cloning and the appointment of federal judges.
So when Democrats take to the floor to block consideration of Miguel Estrada or Priscilla Owen or any of the other Bush nominees, Bill Frist must be prepared to make the Dems stay there, for as long as it takes. By calling their bluff, Frist will have set a good precedent: that under his management, 51 votes represents a Senate majority. And, an opening act that focuses public attention on a Democratic filibuster of a Hispanic or a female nominee will set the stage for the coming acrimonious battles over nominees for the Supreme Court.