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World Watch
First appeared in print in The Rhinoceros Times, Greensboro, NC
By Orson Scott Card May 1, 2005

Filibuster and Judges

The press has taken sides, and the propaganda is showing up now in the public mind.

In a recent issue of the Greensboro News and Record, a hapless letter-writer wrote in to express outrage that the Republicans in Congress would "cut off debate" about judicial appointments.

Nobody actually lied to this poor soul. Because, after all, a vote to end a filibuster is, in fact, a vote to cut off debate.

The real problem is that a filibuster is not debate, but rather a device for preventing the majority of the Senate from taking an action that the filibustering minority wants to prevent.

What Is a Filibuster?

The filibuster comes from a Senate rule that it takes three-fifths of the Senate to cut off debate on certain kinds of questions. (For most of the Senate's history, the rule was two-thirds, so the rule has been weakened ... a little.)

The reason this is an important rule is because in order to take a vote, you have to cut off debate. Debate is cut off on all matters before either house of Congress just prior to a vote.

So there's nothing pernicious about the idea of cutting off debate. At some point, you stop arguing and take a vote, and then the majority prevails. Every act that ever passed Congress did so because debate was eventually cut off.

With a filibuster, the minority knows that the majority has enough votes to carry an act that the minority hates. So the minority refuses to allow debate to end in order to prevent the vote.

If you have 41 Senators who will vote to refuse to end debate, then you can keep the debate going forever, effectively ending any chance of a vote ever being taken.

Here's how it works, in theory. One of the minority Senators gets the floor, and then refuses to yield to anyone from the other side. Under Senate rules, any Senator can talk forever, if he wants.

So, as in the movie Mr. Smith Goes to Washington, a lone Senator can hold up a vote forever. Except for the problem that he needs to sleep. And urinate. Eventually he's going to have to leave the Senate floor.

However, if he has allies in his cause, he can yield to them. They then carry on the debate. And whenever the other side demands a vote on cutting off debate, all forty-one (or more) Senators on the minority side cast their vote to refuse to end debate. The filibuster goes on; the majority is unable to take the vote that would pass the legislation in question.

The urination problem is thus solved for the filibustering team. But the sleep problem isn't. Because the filibuster is war.

Therefore, the filibustering minority must always have its forty-one Senators available, day and night, as long as the filibuster continues.

But the majority side must always have at least 51 Senators on hand, because if the minority ever thought they had an actual majority of Senators who could reach the floor in time to vote, they would end their own filibuster, allow the vote, and win.

Thus the filibuster keeps both sides awake and available to vote. When filibusters actually take place, all these old politicos camp out in the Capitol, ready to be wakened at a moment's notice to go in and vote. They go to the bathroom in shifts, they eat in shifts, to make sure they always have enough votes to keep the other side from prevailing in either of the two potential votes: the vote to cut off debate, and the vote that the filibuster is trying to prevent.

The Filibuster Is the Nuclear Option

Filibusters shut down the business of the Senate and they make everybody ... er, cranky. So in recent decades, the custom is merely to threaten a filibuster. The leadership of both sides count the votes they would have -- the votes to shut down debate (end the filibuster) and the votes on the matter that the filibuster is trying to defeat.

Thus they know whether the minority has enough votes to sustain the filibuster, and whether the majority has enough votes to pass the issue. If it looks clear to both sides that the filibuster would be sustained, then they don't actually hold the filibuster -- the majority simply doesn't bring the issue to a vote.

Usually, in fact, the two sides either reach a compromise, or the majority gives up on the issue. Thus the Senate is the most conservative of institution of government, if a large minority wishes to prevent certain social changes.

Filibuster, or the threat of filibuster, long kept the Senate from allowing meaningful Civil Rights legislation from passing. It took that most assiduous of vote-counters, Lyndon Johnson, to assemble the majority that forced through a vote on Civil Rights and Voting Rights acts -- because he knew he had the votes to shut down any attempt at a filibuster by segregationist Senators.

The Issue of Judges

But in all the history of the Senate, the filibuster has never been used against a President's judicial appointments. Until now.

Not that judicial appointments have had clear sailing. There were lots of other finagles that could be used, under the Senate rules, to tie up judicial appointments for months or years -- Jesse Helms was a habitual user of such privileges to keep presidential appointments dangling for months and years at a time. Conservative Republicans cheered when he abused the process in this way, and kept the President's lawful choices from coming to a vote.

So let's not pretend that the Republicans' hands are clean. They're not. There's a long proud tradition of harassing presidents to try to keep them from appointing people that the minority party thinks are bad choices.

However, the filibuster is the Big One. It's an entire minority group -- in this case, the Democratic Party -- declaring war on the President and refusing to allow him to exercise his constitutional authority to appoint judges and other officials with the "advice and consent" of the Senate.

There is nothing in the Constitution that should allow a minority (let alone a single Senator) to block a presidential appointment. All the Constitution asks for is a simple majority of Senators in favor to allow an appointee to take office.

However, the Supreme Court has never determined that it is unconstitutional for the Senate to have rules that make it harder for appointees to pass the Senate. And even when these Senate rules prevent the Constitutional authority of the President from being exercised, it is doubtful that the Supreme Court would weigh in; as one of the three branches of government, the Supreme Court is reluctant to put itself in the middle of a dispute between the other two branches.

Though eventually the court may have no choice.

Because we are on the verge of stalemate. The judicial appointments that are being fought over right now are merely a rehearsal. There are bound to be several vacancies on the Supreme Court in the next few years. President Bush is the legally elected President, and supposedly he, plus a majority of the Senate, should be able to appoint the new justices.

But the Democratic Party is just as adamant that no vote will be taken on any judicial appointment that they don't approve of.

The trouble is that the ideological lines on both sides are so clearly drawn that it is hard to think of any jurist of any ability or standing at all that could be acceptable to both sides. Either he has to be so utterly inoffensive as to be vacuous, or he has to be a "stealth" judge, who has been deliberately concealing his true beliefs in order to remain acceptable for higher office.

In other words, the only people with a chance of getting approved by both of the warring sides in the Senate are judges who have done nothing, who have had no clear thoughts, or who have been such ambitious weasels they have avoided doing anything that might offend anybody.

Changing the Rules

Oddly enough, however, it takes only a simple majority of the Senate to change the rules concerning filibusters. You can't filibuster a vote on whether to limit the filibuster!

So why don't the Republicans, with their clear majority, simply change the rules, ban filibusters, and move ahead?

The reason is simple: They remember far too well how many years they were in the minority. Someday the shoe will be on the other foot -- there'll be a Democratic President and a Democratic majority in the Senate, and then the Republicans want to have the filibuster as an option they can exercise.

So nobody is even talking about banning filibusters altogether. Instead, what the press is calling the "nuclear option" is for the Republican majority to amend the rules so that filibusters are banned for Presidential appointments, while still being allowed on other kinds of votes, most particularly legislation.

Now, let's get this straight right now: The filibuster is the real "nuclear option." It's the Democrats with the filibuster who are shutting down the Constitutional power of the President by threatening to shut down Congress, period.

A vote to change the rules is more like an ABM -- the anti-ballistic missile that will shoot down the "nuclear weapon" of the filibuster.

But regardless of what metaphor you choose to use, the real question is: If the Republicans can make this whole problem go away with a simple majority vote, why don't they?

There are three reasons: Liberal Republicans, Conservative Republicans, and the Media.

Liberal Republicans

Now, I know that "liberal Republican" may seem like an oxymoron, but in fact there are a few Republican Senators who are from liberal states where the majority strongly supports the very principles -- legal abortion, for instance -- that the Democratic Party is sure that Bush's judicial appointments would strike down.

So if these Republican Senators voted with the rest of their party, their opponent in the next election would be sure to use that vote against them.

However, this is going to happen anyway. Republicans in such states are always vulnerable, just like Democratic Senators in southern states. Chances are very good that these few swing Senators already have a moderating influence on the President's appointments to the bench, because ending a filibuster doesn't do a bit of good if some Republicans break ranks and vote against the appointment itself!

(This is, by the way, the reason why it is very good for a political party to have members who are not in ideological lockstep with the majority of the party, and both parties are foolish if they expel or drive out members who are not ideologically pure. You want people within your party to keep you from becoming insanely extremist.)

Conservative Republicans

But why would conservative Republicans be reluctant to vote to change the rules on filibustering?

Simple: If the situation were reversed, and they thought a Democratic President and a Democratic Senate majority were about to appoint justices who would force gay marriage on the whole country the way that the Supreme Court once forced abortion -- by discovering a "right" that is somehow implied by the Constitution -- well, they would want that filibuster rule to be intact.

Because nukes point both ways.

So the Senate Republican leadership -- and the President -- have to persuade all the Republicans in the Senate to vote together to change the rule to block filibusters on Presidential appointments. It comes down to this: Is this the moment to remove a "nuclear weapon" from the arsenal of the minority?

But I believe that right now, the President and the Senate leadership have the votes. They could, in fact, change the rule and guarantee Senate approval of Presidential appointments, as long as they're moderate enough to please the few Republicans from liberal states.

So why don't they act?

The Media

Because the mainstream media is the absolute ally of the extremist Left in America today. They've been pounding us with pro-abortion, pro-gay-marriage propaganda for years now. And they are perfectly ready to paint any change in the Senate rules as a horrible infringement of the "rights" of the Senate.

The fact that this poor letter-writer in the News & Record thinks that a vote to change the Senate rules would be anti-democratic, by "cutting off debate," tells us just how much work the media have already accomplished on behalf of the radical Left.

So the President and the Republicans in the Senate have to decide if they want to take the heat.

Now, the President can't run again, so he can be all for the rule change. It's the Senators who want to be reelected -- and, more to the point, preserve their seat for the Republican Party -- who have to decide: Is this the issue? Is this the time? This could so easily backfire for us politically ... if we do this, will we be putting our heads into the political guillotine?

Courage and Prudence

This is one of those watershed times in American politics where the personal courage of our politicians is in question.

Our system is not designed to put brave people into office. One has only to look at the career of Bill Clinton to remember that watching the polls and changing your conscience to fit them is a very effective strategy ... in the short term.

The thing is, the polls are so easily manipulated. For instance, if you ask people, "Should the Republicans in the Senate change the rules so that they can shut down debate on the President's judicial appointments and vote them into office?" you'll get a plurality, at least, saying an emphatic "no."

In fact, the very question is inflammatory -- it is designed to get the public to frame the issue in exactly those terms.

But if you asked the same people, "Should the Democratic minority in Congress be able to block the President from making the judicial appointments that the Constitution requires him to make?" you'd get a very different answer -- and the debate would be framed in a very different way.

The fact is that following the polls is, ultimately, a stupid political strategy, because the people change their minds. And you can't come whining to them, "But you said only three weeks ago that you wanted me to do this!" They will always answer, "The pollster didn't ask me."

However you feel about the President or the judicial appointments he's likely to make, the fact is this: The only kind of judge likely to get appointed as things stand right now is either someone repugnant to the Republicans, or someone of no distinction or merit. This stalemate is endangering the quality of American jurisprudence.

But changing the Senate rules would remove one of the few brakes on radical change in the law. Regardless of your beliefs on this issue, it is a significant step, and not lightly to be undertaken.

Conservative Republicans who are eager to get the rule change should consider this: President Hillary Clinton with a Democratic majority in the Senate.

Now ... are you sure you want the filibuster on judicial appointments to be taken away?

Of course, there's this to consider: Do you believe, for one moment, that an extreme Leftist Congress, with the media on their side, would hesitate even for a second to change the rules and eliminate the filibuster in order to allow Hillary to appoint judges that would support her agenda?

The irony is: George W. Bush really is a moderate, or as close to one as America can possibly get as President these days. It's not his fault that he lives in an era when the parties have sorted themselves out into ideological extremes, to a degree previously seen only in the years leading up to the Civil War.

We're not likely to get a moderate like Bush again soon -- nor even a cynic like Clinton, who could often be persuaded to act like a moderate.

To end the filibuster of judicial appointments would be courageous.

But would it be prudent?

Copyright © 2005 by Orson Scott Card.

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