Filibuster: a key check-and-balance tool

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Republican frustration over Democratic opposition to some Bush judicial appointments is threatening the separation of powers. Senate majority leader Bill Frist says unlimited debate is inapplicable to votes on judicial nominations. He says the Senate is obligated to have an up-or-down vote.

But there is no basis for this in the Constitution or in Senate rules or precedents. The filibusters that Republicans find so objectionable are rooted in the right of unlimited debate: If opponents can talk long enough, there will be no vote, and whatever they are opposing will fail.

There is no such right in the House. This is one of the basic differences between the two bodies. It stems from the concept that the House is the popular body representing people, while the Senate is the deliberative body representing states. This was the fundamental compromise that made possible the agreement leading to adoption of the Constitution in 1787. The Senate was (and is) the protector of small states and, by extension, of minorities.

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The filibuster was rarely used in the 19th century, even during the bitterness leading to the Civil War. It didn't become a major issue until early 1917, when it was used to defeat a bill to arm merchant ships. Under pressure from President Wilson, this led to a new rule in the Senate providing that debate could be ended by a two-thirds vote (Rule XXII).

Following the civil-rights debates of the mid-20th century, this was amended to provide for cloture - the procedure to close debate and put an issue to immediate vote - by a three-fifths vote (60 instead of 67) except with respect to changing the rules.

It is being argued that the Senate ought to adopt its rules anew at the start of each Congress, opening Rule XXII to amendment. This argument has been made before but never prevailed. The Senate is generally regarded as a continuing body whose rules carry over from one Congress to the next. This is another difference between the Senate and the House: Every member of the House is elected (or reelected) every two years; senators serve overlapping six-year terms, so the Senate never starts afresh.

The media has talked about more filibusters than have perhaps occurred. Impatient majority leaders - Senator Frist, and former Sen. Trent Lott (R) of Mississippi - have filed more cloture petitions, and have done it earlier in a debate, than they have needed to.

The history of filibusters shows that the longer the debate has lasted, the more senators vote to end it. As debate continues beyond a month or two with the Senate in session around the clock, the more pressure for cloture mounts. But in recent times, cloture petitions have been filed before debates have been allowed to run their course. It is frequently said that 60 votes are needed to do anything in the Senate. That's a gross exaggeration. Before Washington became so polarized, the Senate frequently killed nominations without voting on them. If the nomination affected only a single state (as is the case with federal district, but not appellate, judges), a senator from that state could kill it by declaring the nominee to be "personally obnoxious." Or a senator could put a "hold" on a nomination, meaning that it would not be called up without the senator's consent.

The constitutional requirement for Senate confirmation of federal judges is one of the checks on the power of the president, part of the system of checks and balances. In President Franklin Roosevelt's second term, Democrats had a much larger majority in the Senate than Republicans have now. Roosevelt was upset that the Supreme Court had held much New Deal legislation unconstitutional. He asked Congress to increase the number of justices so that he could appoint enough New Dealers to override what he called the "nine old men." The Senate said no. This should remind Republicans that they're likely one day to be in a minority and want the protection of the Senate's traditions that they now seek to uproot.

An independent judiciary is a bedrock requirement for democracy, as is public respect for the judiciary. The US is in danger of losing both. After Terri Schiavo died, House majority leader Tom DeLay said the courts had "thumbed their nose at Congress and the president." That's what the separation of powers is about; it's what makes the government work.

Pat M. Holt is former chief of staff of the Senate Foreign Relations Committee.

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