- The Washington Times - Saturday, May 7, 2005

Take a look at the passion of some defenders of the Senate filibuster’s misuse to block President Bush’s judicial nominees, and you would figure the precedents for this parliamentary device were mountainous, that the filibuster itself had an honorable history and that Democrats had always embraced it as not just OK, but as splendid, as magnificent, as a grand and glorious thing.

Look at the anger in the writing of those filibustering for the filibuster, or their red-faced sincerity when they talk on TV, and you might suppose that still another exception to the Senate rule would eventually collapse the whole structure. You might even conclude the Constitution itself is at stake here.

But there is no precedent for using the filibuster as an overall strategy for thwarting any up-or-down vote ever on the Senate floor on a string of judicial nominees favored by the majority.

Primarily, the filibuster has been used to block legislation about which senators in the minority have especially strong feelings. And, yes, there’s something to be said for a rule that calls for a supermajority of 60 to end debate: You can thus engender further deliberation on an issue, you may protect the republic from the moment’s wrongheaded emotions and you thereby show respect for consensus on matters that matter most.

Of course, the most famous uses of the filibuster did not exactly shower our land with honor. The most famous instances were not on the order of Jimmy Stewart boldly battling corruption in “Mr. Smith Goes to Washington,” but of Southern Democrats making sure no black would ever get his or her rights or decent treatment in their neck of the woods. Perhaps a recollection of that racist obstructionism was in the back of the minds of the 19 Democratic senators who voted to end all filibusters a decade ago.

That proposal, I learned in a National Review article by Sean Rushton, Committee for Justice executive director, was indeed the brainchild of Democrats. I also learned there are 26 laws detailing occasions when senators are not allowed to use the filibuster, such as voting on a federal budget resolution or an international trade agreement. Adding another exception would scarcely make the edifice topple, despite the fear of some that an eventually Democratic-controlled Senate will strike back by eliminating the filibuster altogether. While 19 Democrats voted to do away with it once upon a time, most Democrats knew better, just as they would when in power again. They would have to calculate the eventual cost to their own causes.

But look, says the pro-filibuster crowd, the Constitution will take a hit if Senate Republicans change the rule. Wrong. The Constitution makes it clear a majority of senators can determine the rules of any session and makes it equally clear no decisions of previous sessions can prevent a majority from doing what it wishes in an ensuing session.

The Constitution is at stake in this debate, however, because the judicial branch has been behaving far too often as if it is not bound by law or the Constitution, as if judges must look to no authority beyond their wishes and moral understandings.

The long-held civic beliefs of Americans, in the Constitution and in the 1964 Civil Rights Act and the 1965 Voting Rights Act, are that people should be treated equally as individuals, not discriminated against on the basis of race or color. And yet repeatedly, I am reminded in a superb book, “Who Are We?” by Samuel P. Huntington, the U.S. Supreme Court has found racial preference policies permissible. In a 2003 decision, Justice Sandra Day O’Connor wrote in effect that, well, we will just extend this preferential judicial policy for another quarter-century or so and then perhaps we can drop it. Amazing.

The Bush nominees the Democrats fear are judges who embrace the Constitution. A judicial branch that takes the laws of the land and the Constitution seriously could give Democrats outcomes they don’t want.

What Democrats do want is continued judicial tyranny, and it’s this tyranny that should arouse passionate objection, lead to red-faced sincerity and should give rise to anger.

Jay Ambrose is former Washington director of editorial policy for Scripps Howard News Service.

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