Friday, March 04, 2005
In this op-ed Senator Robert Byrd tries to make the case for the filibuster:

To understand the danger, one needs to understand the Senate. The Framers created an institution designed not for speed or efficiency but as a place where mature wisdom would reside. They intended the Senate to be the stabilizer, the fence, the check on attempts at tyranny. To carry out that role, an individual senator has the right to speak, perhaps without limit, in order to expose an issue or draw attention to new or differing viewpoints. But this legislative nuclear option would mute dissent and gag opposition voices.

We have heard the president call for an up-or-down vote on his judicial nominees. But nowhere in the Constitution is an up-or-down vote -- or even a vote at all -- guaranteed, and the president cannot reinterpret our nation's founding document to achieve his political goals. Those who disagree with the president in this matter will be labeled "obstructionists," but nothing could be further from the truth.

A federal judge is selected for a lifetime appointment. Senators must apply their best judgment to each selection. If a senator believes a nominee should not be confirmed, that senator has a duty not to consent to confirmation. Yet, for the temporary goal of confirming a handful of objectionable judicial nominees, those pushing the nuclear option would callously trample on freedom of speech and debate.

If senators are denied their right to free speech on judicial nominations, an attack on extended debate on all other matters cannot be far behind. This would mean no leverage for the minority to effect compromise, and no bargaining power for individual senators as they strive to represent the people of their states.

As an aside, one commentator to this blog made a much better argument for the filibuster than Senator Byrd did, but I digress. Byrd focuses on some apparently unenumerated right that Senators have to unlimitedly speak supposedly to "expose differing viewpoints," that has the sole effect of blocking a vote on an issue. Well even without the filibuster there will be debate on the issue (not that there is true debate in Congress anymore anyways - which Byrd knows all to well I am sure). So Senators can "expose" their viewpoint. And besides that fact, the content of a filibuster has nothing whatsoever to do with the issue being debated - as Byrd knows all too well. (unless of course Byrd's courtship of his wife has taken on national importance and I just missed the memo).

So once you understand what the filibuster actually is, you realize this argument is total and complete garbage. Everyone who reads it should be offended frankly.

Byrd's second argument is that the filibuster is needed to check "tyranny." But the filibuster allows tyranny to continue - tyranny of the minority.

The filibuster allowed a tyranny of the minority, including Byrd the final speaker, to filibuster civil rights legislation in the 60s. Sure there is risk of tyranny of the majority as well - as one commentator to this blog eloquently pointed out in comments to this post - but at best the "tyranny" argument is a wash.

[As an aside, in light of the fact that Byrd filibustered civil rights legislation in the 60s, it makes you wonder what he means by:
Yes, Americans believe in majority rule, but we also believe in minority rights.
Well not Byrd, but at least some of us do.]

Byrd's final argument seems to be that: "Senators must apply their best judgment to each selection. If a senator believes a nominee should not be confirmed, that senator has a duty not to consent to confirmation."

That is right, you should vote against the judicial appointee. But guess what? If 51 Senators disagree with you the Judge is appointed - that is how democracy works.

And what about Senators that "apply their best judgment" and determine the judge is qualified. Don't they have a duty to consent to confirmation? Of course they do. But the filibuster blocks them from doing so - it doesn't block anyone from voting "no." So this argument really mandates the removal of the filibuster, because the filibuster prevents Senators from applying their best judgment.

Perhaps Byrd needs to rethink his position (again).
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I am an attorney in Chicago. Politically speaking, I am an indepedent that tends to lean conservative on fiscal issues and progressive on social issues. I try to remain as unbiased and open-minded as possible. Please email or post any comments, and especially criticisms. If something I say is wrong, or you disagree - let me know about it!



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