Seventy-four percent of Americans surveyed by CBS News said Congress intervened in the Terri Schiavo right-to-die case to advance a political agenda, not because they cared what happened to the Florida woman whose last days took center ring in a grotesque national media circus. The people called it accurately, as right-wingers on Capitol Hill confirmed with incendiary reactions to Schiavo’s death. “The time will come for the men responsible for this to answer for their behavior,” snarled House majority leader Tom DeLay; GOP Senator John Cornyn wondered aloud on the Senate floor whether there was a connection between the “perception” that judges are making political decisions and the fact that “some people…engage in violence.” Both DeLay and Cornyn took some appropriate hits for playing to the worst instincts of a country where in recent months judges and their families have been the targets of violence. But few in Washington were confused about the meaning of DeLay’s warning: While he might muse about impeaching federal jurists, his real passion is for removing barriers to the Bush Administration’s campaign to pack the courts with right-wing judicial activists.
DeLay has made no secret of his desire to “go nuclear” in the fight over judicial nominations, and Senate majority leader Bill Frist, another Schiavo interventionist, shares his enthusiasm for blowing up the rules that allow a minority of senators to use a filibuster–best understood as the unlimited extension of debate–to block controversial judicial nominations. During Bush’s first term, when the Senate flipped back and forth between Republican and Democratic control, Democrats managed to derail ten of the Administration’s 229 nominees for federal judgeships–in Judiciary Committee votes when the Democrats controlled the committee and later, when Republicans took charge, with filibusters. Among those blocked were Bush’s most extreme picks for federal appeals court benches in the West and South, such as California Supreme Court Justice Janice Brown, who argues that the First Amendment permits corporations to make false or misleading representations without legal ramifications, and Texas Supreme Court Justice Priscilla Owen, whose moves to undermine protections for women seeking abortions were so radical that another justice, right-winger Alberto Gonzales (now US Attorney General), decried them as an “unconscionable act of judicial activism.”
With Republicans more firmly in control of the Senate after the 2004 elections, Bush has resubmitted the names of Brown, Owen and five more blocked nominees. Even with the Senate split fifty-five to forty-five, Democrats still have the forty votes needed to maintain a filibuster. But Republican leaders in the Senate, including Frist, are so determined to satisfy the Administration and their party’s social conservative base that they have signaled their willingness to invoke the “nuclear option” of radically rewriting the Senate’s rules to make filibusters of judicial nominees virtually impossible. So the fight is on, not just to save a Senate rule but to maintain this country’s already compromised system of checks and balances on executive and legislative overreach.
The filibuster takes its name from the Dutch word for “pirate,” and it has long been associated with a buccaneering approach to the legislative process. Dissident minority senators have historically tossed the final roadblock of the filibuster in the way of nominations or laws they could not prevent in any other manner. As with most tools, the filibuster can be used for good or ill. For every Paul Wellstone filibustering to block a corrupt bankruptcy “reform,” there was a Strom Thurmond filibustering to slow the civil rights movement. Unlimited debate was allowed until 1917, when President Wilson, worried about the prospect of antiwar senators like Robert La Follette using the filibuster to challenge his rush to enter World War I, prevailed upon the Senate to adopt a rule allowing two-thirds of senators to vote to end a filibuster. In 1975 the ratio was modified to three-fifths, or sixty votes, where it has remained. But there has rarely been serious discussion about eliminating the filibuster until now.