Although conservatives now attack the filibuster as anti-democratic, liberals say it may be the last mechanism requiring the Senate to represent the wishes of the entire country, rather than the base of the majority party.Now, how does this concept of the true majority really work? We know that the states each get only two Senators, and some very large states -- notably New York and California -- have two Democratic Senators. But there are still huge numbers of Republicans in those states who aren't going to feel that the Democratic Senators are representing the interests they care about in judicial appointments. If the state lines were redrawn to make 100 units of equal population and each of these new units elected one Senator, what would the party split be?
"A simple majority in the current Senate doesn't represent a majority of the United States, but Democrats are coming from states which represent a majority of the American population," [liberal legal scholar, Michael] Gerhardt said. "The filibuster helps to counterbalance the fact that a majority of the Senate right now may not speak for most of the country."
The filibuster is a crude mechanism for getting closer to the rule of the majority. Senators from really small states get to use it too, even states that are nearly evenly balanced between the two parties. So a very tiny fraction of American preference could prevail using the filibuster.
So what is the best way to come as close as possible to representing what the majority of Americans wants in picking the individuals to fill the judicial slots?
The best answer is to allow the President to have his choice. The effort of electing the President engages the entire country. He's the one person who represents us all, and the Electoral College process gives recognition to the individual states in a way that gives far more regard to the people of the large states than the Senate does. This is not to say the Senate ought to do nothing with it's advise-and-consent role. It ought to at least ensure that the President doesn't stock the courts with unqualified cronies. But if the President selects worthy jurists, there is a limit to how much a minority of Senators should be able to accomplish.
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As you point out Mr. Bush did receive a majority in the Electoral College. And a majority of votes cast.
As I've watched Democratic Senators and their allied pundits tying their tongues into knots trying to explain how the Founders intended minorities to rule rather than majorities, I've marvelled. My recollection of The Federalist Papers is that there was a horror of direct democracy and faction but no similar misgivings about the reasoned positions of the majority of the elected representatives of the people. Am I mistaken?
And, sadly, faction is precisely what we're seeing.
Paul: Good point. Though the current House districts have to fit within the existing states' borders and, of course, they are all politically gerrymandered. But so would my new 100 units.
Shane: The problem lies in democracy itself, then. You should prefer a government by the elite, since, as you note, people in general are quite stupid.
Shane: Many of us are still trying to figure out how any of you could have voted for John Kerry.
Gerry: Your point assumes I'm trying at this point to channel the Framers, but I'm trying to respond to Gerhardt's argument from democracy. You could say democracy should not be the issue here, because original intent should govern, but I'm saying let's assume we're arguing with someone who wants a democratic process and doesn't believe in original intent. After all, it is the Democrats who are pushing the filibuster. If they believed in original intent, they wouldn't be upset about these judges!
Ann, I just want to commend you on your level-headed and insightful posting on this topic. It has been very helpful. You are one of the sanest voices out there (and not just on this topic).
gerry: remember that the Senate the framers devised consisted of two senators who were picked by the legislatures of the states. We did not have direct election of Senators until after the 17th Amendment was ratified, some time in the late 19-teens as I recall.
I don't know how this would effect the overall composition of the Senate today, buy my state would almost certainly have two
Republican Senators instead of the two Democrates it now has.
We should not be looking for representation in filling judgeships. The interpretation of laws and of the constitution and the administration of justice in general should be as close as we can get to reasonable and objective. Having to satisfy only 60 out of 100 senators that the impartiality and good sense of a candidate can be counted on for the rest of their lifetime seems like a very far cry from excessive stringency to me.
Murky: Unfortunately, the Senators are quite involved in predicting how judges will decide cases, and they have their political preferences for outcomes. They won't restrict themselves to looking at how able the judges are from some sort of neutral perspective, and the Democrats are convinced -- with good reason -- that Bush is picking people who will go the opposite way from what they want. Plus, they are making a political stand and trying to make a show of their own power.
" They won't restrict themselves to looking at how able the judges are from some sort of neutral perspective"
They'll certainly be doing something closer to this than to the alternative so long as fillibustering is allowed, and that's a good thing, isn't it?
The Senate itself is the compromise between the larger and smaller states. If you give two Senators to each state...there is your compromise...a Senator from Nevada has the same rights as a Senator from California. Allowing a further minority in the Senate to dictate over the majority is not a compromise that was debated or ratified by the people of the United States. There is no constitutional law to support the filibuster.
Thus, the argument that the filibuster is a tool needed to create better represenatation of the people (the argument made by Gerhardt) can actually be better used to show why the filibuster is in violation of the original compromise to give Senators from small states equal rights with Senators from large states. Fair representation in the Senate would be bad for small states.
"I would just like to point out that that if Republicans get rid of the filibuster it will in the future bite then the rear...."
It will bite the Republicans worse if they don't do it. Democrats will have a much easier time getting rid of the filibuster if they ever have a majority. The party of "non-tradition would never let Republicans filibuster 50% of a Democrat's President's judges.
Note that the Democrats never had the opportunity to use the Constitutional Option because Republicans never filibustered a good number of their judges.
The filibuster has survived as a tool because it has been sparingly used. If the filibuster became a common technique to spoil legislation, it would be eliminated.
Senate Democrats have filibustered 10 of Bush's Circuit Court Nominees. Prior to this, no party had ever filibusterd a Circuit Court nominee. We went from 0% filibustered for 200 years to 50% filibustered in the last few years (30% if you include the Clinton nominees). Perhaps if the Democrats filibustered ONE nominee, 0% to 5% may not seem so egregious. However, I would argue that 0% to 50% spells the end of the filibuster for judicial nominees.
"....people need to be wary of a country where one party controls everything. It leads to corruption and possibly a dictatorship..."
I couldn't agree more with this quote. In fact in many countries around the world, political parties rule absolutely. Look at Britain's parliamentary system.
Further, many often forget that our political parties are internal political institutions themselves. FDR presided over a Democratic coalition, which heavily included Southern Democrats. Today's Republican majority is a coalition of many parts. Conspiracy theorists can imagine that Bush controls the rest of Congress like a puppet. In reality, Bush has influence, but that is all. Otherwise, all Bush can do is play his Constitutional role.
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