The Filibuster as Check on Abuse of Majority Power

The Senate was designed to be the more deliberative body in Congress. As columnist George Will wrote in 1993, “Democracy is trivialized when reduced to simple majoritarianism.” Writing in defense of the filibuster, Will said then that “the Senate is not obligated to jettison one of its defining characteristics, permissiveness regarding extended debate, in order to pander to the perception that the presidency is the sun around which all else in American government – even American life – orbits.”

The current situation – with one party dominating the White House and Congress in spite of a narrowly divided national electorate – demonstrates why our constitutional framework was designed as a system of checks and balances. This is especially true given the administration’s defiant refusal to engage in bipartisan consultation and compromise, and given the increasingly bare-knuckled attempts to bully senators into submission by smearing opponents of some Bush judicial nominees as anti-Catholic.

Along with the unprincipled and despicable charges that opposition to Bill Pryor and other judicial nominees is grounded in anti-Catholic bias, the rewriting of history regarding the Fortas filibuster demonstrates that the administration and its allies will not let the truth stand in the way of their efforts to confirm every Bush nominee – and that there is apparently no tactic too tawdry for the Bush political machine when it comes to trying to score political points for the president’s reelection bid. Additionally, the recent nominations of right-wing activists Brett Kavanaugh and Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit are evidence that the administration continues to choose the path of political confrontation over consultation and compromise that could result in more appeals court nominees able to gain genuine bipartisan support.

The filibuster is now the only tool that Senate Democrats have at their disposal to try to force the administration and the Republican Senate majority to engage in bipartisan consultation, compromise, and cooperation on judicial nominations. Their only other option would be to stand aside while the administration abuses its power in order to fill the federal courts with judges who are eager to reverse decades of legal precedent and social justice progress on civil rights, privacy and reproductive choice, religious liberty, environmental protection, worker and consumer safety and health and more. That would be a devastating dereliction of senators’ duty to their constituents and to the American people and an abdication of their constitutional advise and consent responsibility.

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