Senate Majority Leader Bill Frist, the health insurance industry heir who went into politics for the purpose of protecting his family’s financial interests against even the most tepid federal regulation, is not exactly an expert on the workings of Congress.
But that has not stopped the Tennessee Republican from launching an attack on one of the Senate’s most time-honored traditions.
Speaking to the Federalist Society, the conservative legal affairs group that has become the nation’s premier proponent of judicial activism, Frist lashed out against Democrats who threaten to use filibusters to block corrupt, incompetent or ideologically extreme nominees for federal judgeships.
“One way or another, the filibuster of judicial nominations must end,” griped Frist, whose new cause offers another reminder that little changed when he replaced former Senate Majority Leader Trent Lott, the segregationist-praising Republican from Mississippi.
“This filibuster is nothing less than a formula for tyranny by the minority,” argued Frist, who claimed that if Democrats succeed in using procedural tactics to block some of President Bush’s nominees, “they will have effectively seized from the president the power to appoint judges.”
Frist’s rhetoric is dramatically overblown. Senate Democrats have cleared the way for the approval of the overwhelming majority of Bush’s judicial picks; they have used the threat of a filibuster to block only the nominations of 10 particularly unfit nominees for federal appeals court positions.
There is no “tyranny of the minority.” In fact, if Senate Democrats were to make real on the threat of a filibuster — which halts Senate action as one senator or a group of senators engage in an extended discussion of a nomination or issue being considered by the chamber — it would only be because there is no other way to get Senate Republicans and the White House to consult with the opposition party in the manner that the nation’s founders intended.
Frist delivered his bombastic remarks to the Federalist Society in an effort to try to scare Senate Democrats before the new session of Congress begins. If the Democrats launch a filibuster, or even threaten to employ the tactic in order to slow down the process of making judicial nominations, Frist signaled that GOP leaders in the Senate might implement what is refered to as “the nuclear option.”
When he employed the phrase “one way or another, the filibuster of judicial nominations must end,” the majority leader indicated a willingness to sanction an effort by some Republicans to circumvent Senate rules and declare filibusters against executive nominations to be unconstitutional. This dubious strategy is troubling even to many Republicans, who worry that rewriting Senate procedures in order to advance the Bush administration’s court-packing agenda could come back to haunt the GOP when a future Senate is controlled by the Democrats.
For all of Frist’s bluster, Senate Republicans wont have the guts to bar filibusters if Americans express support for the use of the tactic as it was intended — to prevent the Senate majority from doing something that would harm the country.
Frist’s attempt to portray the tactic of filibustering — or threatening to filibuster — as a new and dangerous phenomenon is a lie. This tool has been employed repeatedly over the past two centuries — most famously in recent years when former President Lyndon Johnson’s nomination of Abe Fortas to serve as the chief justice of the US Supreme Court was blocked in 1968.
The filibuster was a particularly popular tool of progressive senators at the dawn of the last century. Former US Senators Robert M. La Follette, R-Wisconsin, George Norris, R-Nebraska, and their allies used it in the 1910s and 1920s to battle against the takeover of the Senate by crony capitalists, military adventurers and war profiteers.
The Senate progressives who would go on to be remembered as some of that chamber’s greatest members were passionate defenders of the filibuster. Burton K. Wheeler, the Democratic senator from Montana who was La Follette’s running mate on a progressive independent ticket in the 1924 presidential campaign, wrote about the subject in his classic autobiography Yankee from the West. Wheeler recalled that La Follette’s most passionate advice to him as a young senator was to always support the right of fellow senators to filibuster.
“Never vote for cloture,” said La Follette, referring to the procedure used to counter filibusters by getting 60 senators to vote to force an end to debate. Even on an issue where a progressive senator disagreed with colleagues who were filibustering, La Follette argued that it was always wrong to stifle debate on important issues and nominations.
La Follette was right. The filibuster is one of the few tools that a minority party can use to counter the worst excesses of an out-of-control majority party. The practice should be defended — and, yes, it should be used even in the face of Bill Frist’s threats.