Congressional Republicans have been outraged that the U.S. Supreme Court has taken to basing decisions on international law. But when it comes to changing the rules of the Senate, they seem perfectly happy to act like Europeans.
The Republican-controlled U.S. Senate will vote on whether to change the filibuster rule for judicial nominations. The current rule requires a three-fifths vote _ 60 senators _ to shut off debate and put an issue or nomination to a vote. That is, it requires a fairly broad consensus among the senators that an issue is ready to be voted on.
The assumption is that anything that cannot get 60 senators to vote for it may need more consideration.
Senate Majority Leader Bill Frist and other proponents think that the rules should be changed to make it easier for the Republican majority to get its nominees, or rather President Bush’s nominees, approved. They are saying, in essence, that the majority should be able to do whatever it wants.
Frist seems to think he has been elected to the British Parliament, where the majority simply rubber-stamps the proposals of the prime minister. As long as the PM has more than 50 percent of the votes, he can do whatever he wants. But our institutions were designed to be different. We did not reject the British Parliament just so we could re-create the same system.
The Founders intended Congress to be more than just a rubber stamp for executive policies. They carefully separated our institutions to make sure that policy could not be dictated by a sectional or ideological faction. Any public policy needed to have broad support in the country. This is why both the Senate _ a majority of the states _ and the House _ a majority of the people _ must agree on legislation.
It is different with nominations, where the Senate alone must decide. The only thing keeping it from approving partisan, biased or unqualified judges is the Senate’s own judgment and self-restraint. Because there is no House vote to check the Senate’s action, the filibuster is even more important for nominations than it is for legislation. It helps to make the majority accountable for the nominees it approves.
The Constitution gives the Senate an independent voice in approving the president’s nominations so that it will be a check on presidential power. The filibuster is an appropriate tool, consistent with the Constitution’s requirements, for preserving the Senate’s check. It gives the minority party the ability to insist that the Senate think carefully about nominations and to exercise its judgment.
It will not surprise anyone to discover that in the 1990s, the Republicans themselves resorted to the filibuster to stall President Clinton’s nominees to both judicial and executive offices. Their current frustration and outrage is simply their discovery that the shoe pinches when it’s on the other foot. In fact, the Democrats have been more moderate than the Republicans were _ while the Republicans blocked 60 Clinton appointments, the Democrats have filibustered 10 of President Bush’s nominees.
Chief Justice Warren Burger once observed that “convenience and efficiency are not the primary objectives _ or the hallmarks _ of democratic government.” The filibuster rule for nominations is certainly inconvenient to the Senate majority. But it should serve as a reminder to the Republican majority that its responsibility to America goes beyond merely getting the president’s nominees approved.
Because they represent all the people, they must be sure that their power of confirmation is exercised for the broad public interest, as the Founders intended. That is why we make sure that no power in our system is unchecked. If the senators want to have a political system where they are not supposed to check the president, they can always move to France.
(Jackson Barlow is a professor of politics at Juniata College, in Huntingdon, Pa.)