Wednesday, February 09, 2005


Update: Never blog when groggy. Here what this post should have looked like:

Frist is gearing up for an assualt on minority rights in the Sentate by reinterpreting the rule for cloture. Presidential nominations require a vote of 60 to move to cluture and vote, and that is where a sorely abused minority can have their say. The don't need to vote for cloture and can't be shut up so long as no cloture vote passes: this is the filibuster in all its frustrating glory. There are interesting arguments on both sides of the issue, summed up well by Erwin Chemerinsky of Duke Law School and Steven Smith of Washington U at St. Lou, but it comes down to this: removing the filibuster from Presidential nominations, especially of judges, would greatly weaken the protections of minority rights built into the structure of the Senate.

Contrary to agitprop from the right the filibuster a venerable, constitutionally approved, tool of statecraft that both sides have deployed in exactly this fashion for over 100 years. More importantly, the GOP's current push to level yet another barrier to majoritarian dictatorship is ultimately going to bite them in the ass. Far too many causes they, and their consitutents care about are minority positions. Killing the filibuster for this purpose, will lead to its death for other purposes. Contstutional change (even of a non-textual type) is like a one way valve, once you've passed though, everything is different, and there is no going back.

Senators face a harder electoral challenge than House members. They cannot tailor their districts; they take their states as they find them. They are less likely to be facing an inexperienced opponent in a carefully crafted district. Instead they have an more organic constituency to answer to, which are generally much closer to 50/50 than a Congressional district, and much more experienced opponents. Part of their political capital is their long-term political and social ties with the people of the state. Knowing this, what Sentator is going to take marching orders from Tinpot Bush to overturn the very system which she knows might protect her constituents' more unpopular interests someday? Senators are a more powerful and self-assured lot than Congresscritters. They are able to take a longer view of politics. DeLay may be able to run Congress like a kangroo court, but Frist cannot treat the Senate that way; not yet.

Were this nation in the midst of a massive electoral realignment, such as the Civil War or the Great Depression and WWII, or even Vietnam, some of the normally rigid structures of the Constitution may need to become more pliable short of actual amendment to accomodate the new reality. But this election was the closest for a sitting President save one: that's no realigning shift, that's a deeply troubled and increasingly embattled Administration barely escaping the wrath of the voters with its tailfeathers singed. There will come a day, and that is not far off, when the Republicans will once again be shivering around the inadequte centers of power in the states and cities and counties of America, while Democrats Morris dance round the bonfire of power in Washington.

You have to ask yourself, oh American Conservatives, with all those liberals up there basking in the heat of Washington once again someday soon, do you really want them to be able to pack the courts with anti-gun, anti-death penalty, pro-immigrant candidates about which you can do nothing? Once that stop is pulled, it pulled for us too, when we retake power, and we will. The GOP is great at politics, but lousy at governing sensibly. People are going to get fed up with sound bytes, deficits, and Orwwellian slogans, and demand solutions to everyday problems, and they will vote for Democrats to get them.

So if you are a conservative, or a GOP member, or just an independent interested in keeping some balance in this nation, think on these matters and oppose the short-sighted, self-serving stunt Frist and Cheney want pull by 'reinterpreting' the scope of the filibuster. Consider that the Senate has already abrogated its traditional role in advising and consenting to treaties with a 2/3 vote by failing to guard its prerogatives vigorously and wisely. This radical restructuring of national power, stripping minority interests of their protection from international agreements which are against their interests, required no Constitutional amendment. The rise of the joint resolution to equivalence with the treaty power happened during the upheaval in power of the Great Depression, New Deal, and World War, and only much later led to the passage of NAFTA under Clinton by a bare majority of both houses of Congress. Actions can have unforseen consequences, and the best of intentions can run awry.

Consider whether it is really in this nation's best interests to unbalance the Constitutional framework to serve the radical anti-abortion and pro-corporate agenda of this President? Once this step is taken, the genie won't go back in the bottle. The judiciary will become a political football for whatever faction can gain a bare majority of the Senate and the Presidency. There is a good reason why we allow a minority to block unwanted judicial nominees. We do not want Americans' civil rights, which are always unpopular when it matters, to become even more vulnerable to a tyrannical majority through the venal and political packing of the courts with ideologues and activists. Next time it may not be abortion and gay rights they are after, it may be your right to own a gun.


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