Sunday, May 22, 2005

Michael: Nuking our Democracy

Next week, all eyes will be focused on the drama in the Senate as the GOP attempts to subvert our Democratic institution of the filibuster. Make no mistake, stripping the minority of rights to slow or stop unwanted action, be it legislation or lifetime appointments, is not improving democracy, it is destroying it. And like all great dramas, the dialog is not about what it is about. The script may be about 10 rejected nominees, but the meaning is really only about the coming nominations to the Supreme Court. The GOP wants to strip Democrats of the right to object to judicial nominees only because they plan to pack the court with the worst sorts of activist judges yet seen. They will make Fortas or Bork seem like centrists by comparison.

There is only one way to stop this and the Senators on the Democratic side of aisle can't do it. The 'nuclear option' of constitutional reinterpretation is against the rules of the Senate, and cannot be stopped by less than 50 Senators. Unless at least 5 GOP Senators suddenly put their love of country above loyalty to party the 'option' will pass: and only three, McCain, Chafee, and Snow have found the spine to stand up for their countries' democracy. No. Saving the right of filibuster, the 200+ year institution that protects minority rights in this country, is not going to be accomplished by politicians, it is up to you. Only a sufficient outcry by the citizenry will put paid to the GOP's ambition to set up a one-party state and pack our Court with ideologues.

Some may claim that losing the filibuster, which was used to block civil rights legislation and to prolong the institution of slavery, will ultimately be a positive thing for America. That without the filibuster progressive legislation will be enacted more easily over the forces supporting the status quo. This might be true, but difficulty in good times is a small price to pay to avert tyranny in bad times. The quality and durability of a democracy lies in it's ability to protect minorities, not in its ability to empower majorities; majorities are almost always empowered by nature and do not require democracy to ensure their ascendancy.

Our democracy is badly disordered. I, for one, feel that we are very close to the sort of institutional collapse that proceeds all descents into tyranny; the majority picking apart the institutional and traditional safeguards against tyranny until nothing stands against the onslaught of dictatorship. This is the pattern seen every time a democracy has fallen into tyranny; and the GOP is demanding Americans put their own heads on that same well-used chopping block.

We like to think that America is immune from tyranny. To the extent that has been true, it is not because of our character or our principles. If we have been resistant to tyranny, it is only because of the finely judged Constitutional checks and balances built into our institutions (many of which, such as the war powers and the treaty power, have long been abrogated) and those traditions installed early in the life of our Republic by wise statesmen, such as the filibuster and the rights of minorities in Congress (which are now under attack or already destroyed).

Our democracy is already pressed to the wall by the tyranny of a burgeoning police state, an over weaning and bloated military-industrial complex (which, if you think about it, is just another word for the combination of state and corporate power that Mussolini called corporatism or fascismo), an electoral system that returns 98% of federal office-holders to office, a national security state that hides many of the most important decisions our country makes behind a veil of secret executive orders and black budgets, and a political party system that is subject to capture by a pack of ravening Savonarolas on the right hand, and passel of centrist careerists on the left. If we throw away some of the final institutional checks that are the bulwarks of our freedom, we are truly lost.


At 10:57 PM, Blogger Joel Gaines said...


"Make no mistake, stripping the minority of rights to slow or stop unwanted action, be it legislation or lifetime appointments, is not improving democracy, it is destroying it."

Actually, the Democratic institution you speak of was Thomas Jefferson's rule that debate would be limited by calling for a vote of a simple majority of a quorum on an unseconded motion for the previous question. The Filibuster (from the Dutch word for pirate) was introduced in 1806 as means to prevent the ending of debate on a legislative issue. In 1917, Senate Rule XXII was changed again to require a 2/3 vote to end debate and in 1975, that was change to 3/5 vote.

Democracy is the vehicle we use to ensure our freedoms, which ironically has been hampered by the filibuster with regards to civil rights legislation - which incurred a 57 day filibuster. If you will remember, WV Senator Byrd used the filibuster to block civil rights legislation - something he forgot to mention in one of his tirades against changing the Senate rules.

The destruction to democracy is not, as you must be aware, about "doing away" with the filibuster. The issue is to adjust the rules of the senate to ensure the constitutional mandates incumbant upon the government to perform are fulfilled.

There is no constitutional mandate to pass legislation for new highways, for example. There is a constitutional mandate to ensure judges are appointed - especially considering the importance of the judiciary as a branch of government. In our representative government, excluding very specific instances calling for a super majority - of which judicial appointment is not one, 51 votes makes a decision. If anyone is changing the rules to "subvert our Democratic institution", it is Senate Democrats.

At 2:15 PM, Blogger toc001 said...

Well, Joel, the fact is that when the Clinton put his nominees up, they weren't filibustered. Instead, the Republicans would "blue slip" them anonymously and keep them from votes. Democrats are right out front with thier objections and Republicans do it in secret.

Also, when I was in School 51% was a failing grade. If these last few nominees are so qualified and agreeable it should be easy to get nine more votes for a passing grade!

Clinton also conferred with Orrin Hatch to compromise on candidates for the courts. George Bush shoved his candidates right back in our faces without any regard for compromise.

Guess what, as the polls show, this attitude is hurting both the President and the congress in the polls. The nukular option will bethe final nail in the Republican coffin.

If the pull the option they expose themselves, rightly so, as power hungry. If they don't get the votes for the nuke, Frist and the leadership is damaged. Tony Perkins and Sponge Dob Squarepants are going to lose it!

At 4:34 PM, Blogger Michael said...

The central principle of democracy is not majority rule, it is reasonable minority protection. In a case where there is a constitutional assignment to a branch of government, it is not implied that the majority must rule. In fact, when the decision has lasting impact, the rule is that a supermajority is needed, such as for treaties. A lifetime appointment to an Article III judgeship is certainly a lasting decision and, therefore, in the absence of any textual commitment to majority voting, the Senate may make it's own rules about how, exactly, to 'consent'. The Senate Rule has been that judicial nominations are subject to filibuster at least since 1968 when Republicans block Abe Fortas' nomination to the SC with a filibuster, but presumably could have been used for the purpose for over 200 years.

It would be fine to change the Senate rules, but as that would require 60 votes as well, the GOP has to cheat and break the rules to get its way, like a tempermental child or a schoolyard bully twarted in his purpose. So instead of changing the rules legitimately they are going to 'reinterpret' them with, using a proceedure with no precedent, to strip the minority of traditionally held rights, that had been often used (by the GOP!) to do exactly what they complain of now - to block nominations to lifetime appointments of unacceptable and marginally qualified activist ideologues who have expressed a desire to, and a record of substituting their convictions for our laws.

The GOP doesn't have a leg to stand on in this fight, beyond brute institutional power. I half-way hope they succeed, because it will give us the ammunition to recapture a majority in 2006.


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