Majority rule on judges

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The Senate continues to produce solid legislative accomplishments, despite roiling partisanship right below the surface. Scheduled completion of the fiscal 2006 budget resolution this week follows major victories on class-action legislation and bankruptcy reform.

Yet one issue could throw sand in the gears of legislative progress — continued unprecedented obstruction of President Bush's appellate court nominees by Senate Democrats. Majority Leader Bill Frist has rightly insisted on finding a way to allow the Senate to take an up or down vote on these jurists. One possibility is a parliamentary move that eliminates filibusters as a tactic to deny confirmation to judges who have majority support in the Senate. Democrats announced this week they would unleash an obstructionist juggernaut if Republicans choose that path.

Inside-the-Beltway parlance calls this the nuclear option, an unfortunate misnomer for a couple of reasons. First, the Republicans didn't start this fight. Democrats launched what amounts to a first-strike procedural warhead last Congress. Republican leaders are simply demanding the restoration of the status quo in the confirmation process. Labels like "nuclear option" imply major, unprecedented and pre-emptive actions by Senate Republicans. Not true. It's the Democrats' tactics, filibustering and denying confirmation to majority-supported appellate court nominees, that is "unprecedented" and "pre-emptive."

This debate needs more history, not hysteria.Democrats protested this week about Republicans using majority rule to eliminate minority obstructionism, but such tactics have a long and venerable tradition in the Senate. Indeed, Republican attempts to reassert and enforce the principle of majority rule are part of an ongoing, evolutionary parliamentary give-and-take as old as the Senate itself.

As political scientist Sarah A. Binder argues in her book, "Minority Rights, Majority Rule," the history of both the House and Senate includes an evolving set of procedures and rules based on the shifting balance between minority tactics and the majority's need to govern. "When minority parties devise new ways of obstructing the majority, the preferences of the majority about desired institutional arrangements shift as well," she writes. This give-and-take between the minority trying to obstruct and the majority adjusting the rules is evident going back to the earliest days of Congress.

Even in the antebellum Senate, a period conventional wisdom suggests was less partisan, minority tactics often resulted in calls for rules changes. Ms. Binder recounts frustrated Henry Clay on the Senate floor in July 1841 saying, "the minority here control the action of the Senate, and cause all the delay of the public business." While Clay ultimately dropped his bid to change procedure, he vowed that he was "ready for the adoption of a rule which would place the business of the Senate under the control of the majority in the Senate."

In a recent article in the Harvard Journal of Law and Public Policy, Martin B. Gold and Dimple Gupta make a similar point, outlining a number of examples of how majority votes in the Senate accomplished procedural changes, sometimes without even altering the standing rules of the Senate. "Throughout Senate history, a simple majority has changed Senate procedures governing debate and by setting precedents or adopting Standing Orders that altered the operation of the Standing Rules (of the Senate) without amending their actual text," they write.

According to Mr. Gold and Ms. Gupta, in 1977, 1979, 1980 and 1987, Sen. Robert Byrd of West Virginia, while serving as Democratic leader, either threatened or forced the Senate to alter procedures by majority vote. In each case, a minority of senators applied the rules creatively to obstruct and in each case procedures to return to the previous status quo were established by either the threat or actual application of a simple majority vote.

Republicans won't act until later this spring, after Democrats implement additional filibusters. But then they should re-assert majority control. Doing otherwise is a de facto change in over 200 years of Senate history.

So, despite the unfortunate conventional wisdom that Senate Republicans are doing something novel, clarifying procedures by way of majority vote has been done through the history of the Senate as majority control has regularly jousted with minority obstructionism. Re-asserting that the Senate can take steps to alter its procedures is consistent with precedent and constitutional intent: It's neither "new," nor "nuclear."