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Changing The Rules
Liberals used to hate the filibuster.


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Ramesh Ponnuru

As Kate O’Beirne observed in NR recently, hostility to the filibuster used to be something of a progressive cause. Liberals associated the filibuster with the opposition to the civil-rights bills of the 1950s and 1960s. In the early ’90s, they were concerned because Republicans were using the filibuster — the “modern” filibuster, that is, which lets the threat of one stand in for the real thing — to block legislation backed by President Clinton and majorities of the Democratic Congress. Liberals started a group called “Action Not Gridlock” to end filibusters. The House Democratic Study Group did a report on the out-of-control filibuster. Liberal Republican hero Elliott Richardson, long noted for moderation and nuanced views, wrote, “Just as we forswear chemical weapons in war, senators should forswear using filibusters in legislative combat.”

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Norman Ornstein of the American Enterprise Institute and Thomas Mann of the Brookings Institution — both centrist good-government types — proposed that the Senate should go back to holding filibusters the old-fashioned way, with “extended and continuous debate, day and night.” Senators Tom Harkin and Joe Lieberman, Democrats from Iowa and Connecticut respectively, proposed reforming the filibuster. Under their reform, the number of votes required to end debate would steadily decline as the debate proceeded. At first it would take 60, then 57, then 54, and finally 51 votes to end a filibuster.

Harkin said, “There is no reform more important to this country and to this body than slaying the dinosaur called the filibuster. We need to change it so that we can really get back to what our Founding Fathers envisioned — a process whereby the minority can slow things down, debate them, but not kill things outright.” But the Senate voted down the Harkin-Lieberman proposal in early 1995. (To their credit, they stuck by the proposal even after the Democrats became the minority party in the Congress.)

Ornstein is still standing by his proposal. So, perhaps more surprisingly, is Harkin. His press secretary told me, “I haven’t talked to him specifically about it, but there’s no reason to think he has changed his mind.” Joe Lieberman’s office did not return calls.

RICE VS. BOXER?
This article reports on some California Republicans’ wish that Condoleezza Rice would run against Barbara Boxer next year. Rice would be a terrific candidate. Maybe the political history of California would be different if she hadn’t withdrawn herself from the short list for an appointment to an open Senate seat a decade ago. And taking Boxer out would be an enormous service to the commonweal. But can we all agree that Rice is doing something a bit more important right now?

A REJOINDER
On Friday, I criticized the Institute for Justice’s brief asking the Supreme Court to strike down Texas’s law against same-sex sodomy. Dana Berliner, a lawyer for the institute and one of the authors of the brief, has responded unpersuasively.

The fact that the Founders believed that people had rights beyond those listed in the Constitution — a point which I have not contested — does not establish that they wanted the federal judiciary to enforce those rights, let alone against state governments, let alone that a right to sexual freedom was among those rights. The assumption that the courts were intended by the Founders to be the primary defenders of our freedoms is unwarranted, and can be rejected without rejecting a belief in limited government.

The principle that the government should not regulate “private morals” may be a fine and noble one, but that does not mean that the Supreme Court has the authority to enforce that principle — which owes more to John Stuart Mill than to anyone who ratified the Constitution.

What IJ is proposing is, in fact, a radical innovation, one going beyond what the litigants in the case or other amici have suggested. The Supreme Court has never held that all laws regulating private morals are impermissible. And Berliner’s presentation of the rational-basis test omits a key point. The Supreme Court has held (for example) that legislative classifications are invalid under the Equal Protection clause of the Fourteenth Amendment if they lack a “rational basis.” I tend to think that the rational-basis test is a pernicious judicial invention. But even so, the test has been tied to a specific constitutional provision. (The Court may well strike down the Texas law using such reasoning.) The Court has not, to my knowledge, explicitly struck down a law just because it seemed irrational to a majority of justices. The libertarians at the institute are asking the Supreme Court to seize even more power than it already has.



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