Originally posted on Monday, May 23, 2005:
As I write this, news reports are indicating that the Senate will probably vote this week on a scheme to prevent the “filibustering” of judicial appointments. I think this so-called “nuclear option” is immoral, un-American, and unwise. I’ve written both of my Senators to let them know that opinion, and I’d encourage others to do the same. Here’s why. 1) It’s immoral. The type of procedure that we call “parliamentary” has many forms, including that used in the Senate. Parliamentary procedure has evolved as a system for balancing the rights of the majority against those of minorities. Parliamentary procedure protects the rights of the minority by providing that certain actions require a “supermajority” vote: that is, a vote larger than a simple majority. Examples of actions that require supermajorities are suspending rules and closing debate, In an ordinary organization, cutting off debate requires a two-thirds supermajority; in the Senate, the rule is more lenient: it requires only sixty votes. Thus, in an ordinary society, a minority of one-third is protected; in the Senate, a minority has to have at least 40 votes to get that protection. While the specifics differ, in both cases the rule protects the rights of a minority of the members. What is really tyrannical is how the Senate majority proposes to end filibusters. Since the minority is sizable, the majority can’t pass a suspension of the rules. So what they propose to do (a point which gets little attention) is to use a parliamentary provision by which a simple majority can uphold a chairperson’s ruling. If they decide to pursue this course, a member of the majority will raise a parliamentary point and argue that the filibuster of judicial candidates is unconstitutional; the President of the Senate will rule that the point is correct; the minority will appeal the decision of the chair; and the majority will sustain that decision. In other words, the majority will cut the rights of the minority by using a vote which requires only a simple majority. 2) It’s un-American. In its simplest terms, “democracy” simply means a rule by the people, and that’s generally interpreted as a rule by the majority. In fact, American democracy is far more complicated than that: the Constitution provided for the sharing of power among distinct, often competitive institutions, and the Bill of Rights was provided largely to guarantee that minorities would be protected against oppression. In countries around the world, we see the real difficulty of exporting our form of democracy. It turns out that disarming dictators, conducting elections, and empowering winners is the easy part. The real challenges have been to convince newly empowered majorities to value–not just tolerate–diversity and to find ways to protect it. Our success in this has been the great good fortune of the American experiment, but it has proved harder to export than simple majority rule. In this respect, the behavior of the Senate majority isn’t unlike that of ideological majorities in emerging democracies. I suspect that one reason the Bush administration has been so surprised at the difficulty of establishing an American-style democracy in Iraq is that neoconservatives and their theocratic brethren don’t grasp, don’t value, and didn’t provide for this second component of “American-style” democracy. 3) It’s unwise. The Senate has always been the place that moderates the more extreme tendencies of the House of Representatives–a characteristic which it shares with the “upper houses” of other bicameral legislatures in individual states and in other countries. The American Senate has long been a place where teamwork and compromise are valued more than they are in the House. If the majority-passed reinterpretation of rules is employed by this Senate in this case, then the tactic will be used again, and in connection with other issues. The Senate will forever become more like the House in its style, regardless of its partisan composition. At my core, I believe that people get the government they deserve. Americans elected a one-party government in November. Since January, the Democratic minorities in both houses have used stalling tactics in an effort to mitigate the more extreme ideas of the Republican majorities. In doing so, they protect voters from the consequences of their decisions, and they look obstructionist while doing it. The nuclear option might force impotent Congressional minorities to focus on articulating their message while the majorities give Americans what they voted for. That wouldn’t be all bad: voters would learn the consequences of their decisions. Right-wing extremists would have their way for a while. Generally, extremist agendas of both the right and the left aren’t sustainable. I believe that the present right-wing plan would eventually be exposed as a fraud. The pendulum would swing and a new majority would emerge. Neoconservatives and theocrats would hide out like postwar French collaborators. This would undoubtedly be a great victory for someone, somewhere; but the price would be too high. The nuclear option and the political climate it engendered would have institutionalized bitter ideological differences and hardened the cultural chasm between red and blue states. We would risk losing public education, social security, large chunks of the environment, and precious individual liberties. Ideologically-driven junk science would make us a worldwide laughingstock. Workers’ rights would disappear, the divide between rich and poor would increase, and inner cities would become even more dangerous. If this scenario seems as bleak to you as it does to me, consider contacting your Senators. For readers in Ohio, the links to Senators DeWine and Voinovich appear below.