The president has acquired unprecedented power in the past 50 years. Today, the president can go to war, allocate a limited amount of funds and funding priorities and appoint an inner circle of advisors who function more effectively as a cabinate than the one that's confirmed by Congress. Consequentially, the Congress has lost power.
Now the Executive branch seeks more control. Bush wants to limit debate on who gets appointed to judicial positions to attempt to pare back what some have seen as increasing power in the judicial branch via what many have called judicial activism. Roe v. Wade, which established abortion as part of the right to privacy, is considered an example of such activism. Another might be Brown vs. the Board of Education in Topeka when school segregation based on "separate but equal" laws. Eventually under judicial activism, this decision lead to an end to government sanctioned apartheid in American under the so called Jim Crow laws. While many might debate busing as a solution to school segregation, few today will support a return to apartheid.
Much of the debate about judicial activism is whether the Federal Judiciary can overrule State laws. However, most recently the arguments against judicial activism argument were inappropriately envoked when advocating for continuing tube feeding of Shaivo. Clearly, the right-wing Christian advocates were pushing for judicial activism to overrule State control in support of their own special interest represented in the president's and Congressional leadership's positions. This change would effectively take power from the judicial branch and the States and place it with the presidency.
The Republican Congress, dominated by Right-wing extremists who seek to consolidate power and permanently prevent loss of that power, wants some of its power back also. They want to outlaw the filibuster that has prevented appointment of "strict constructionist" judges. Should the Republican leadership get its way, there would be very little debate allowed in the Senate. The Democrats would be essentially silenced because a majority could end debate and force a vote on any measure. This change would serve to consolidate power in the hands of Senate leadership. Decisions would be able to be made behind the scenes, without public scrutiny created by the voice of the minority. This is not what our forefathers intended.
The filibuster has a long illustrious history that extends back to our nations roots. James Madison was largely responsible for building into the constitution the means to limit the power of each branch of the government, what is often referred to as checks and balances. Madison's concerns included diluting the power of the Federal government by balancing it with the power of states. He also was concerned about the "tyranny of the majority" where a simple majority in Congress could make major changes in government without allowing debate and influence by the minority.
Just before Madison became president in 1908, the Senate, in 1906, outlawed ending debate by a motion for the "Previous Question", often called "calling the question" in Robert's Rules. For over one hundred years, any Senator could delay the vote on any measure by refusing to cede the floor during the debate. Our forefathers so respected the need for debate and so feared the tyranny of the majority, this parlimentary rule was in place until 1917. Even then the change required a vote of 2/3's of Senators present to end debate. Then when Strom Thurman filibustered to prevent passing of segregation laws, the rule was changed to 3/5 of the Senate was needed to end debate and force a vote.
It seems there is a behind the scenes move by both Democratic and Republican Senators to avoid the "nuclear option", eliminating the filibuster in Senate rules. But Frist has resisted, I suspect because he wants to ensure the support of the Christian Right-wing in when he runs for president in 2008. David Brooks, a moderate conservative columnist again has a balanced article in today's NYT on this issue, listing the pros and cons of the debate.
Opinion > Op-Ed Columnist: Let's Make a Deal" href="http://www.nytimes.com/2005/05/01/opinion/01brooks.html?ex=1272600000&en=d7ebbc3e412bbd3f&ei=5088&partner=rssnyt&emc=rss">The NY Times > Brooks: Let's Make a Deal
Last week, the Senate Democratic leader, Harry Reid, made an offer to head off a nuclear exchange over judicial nominations. Reid offered to allow votes on a few of the judges stuck in limbo if the Republicans would withdraw a few of the others.
But there was another part of the offer that hasn't been publicized. I've been reliably informed that Reid also vowed to prevent a filibuster on the next Supreme Court nominee. Reid said that if liberals tried to filibuster President Bush's pick, he'd come up with five or six Democratic votes to help Republicans close off debate. In other words, barring a scandal or some other exceptional circumstance, Reid would enable Bush's nominee to get a vote and probably be confirmed.
[...]
But Frist should have grabbed Reid's offer. He should have done it, first, because while the air is thick with confident predictions about what will happen if the nuclear trigger is pulled, nobody really knows. There is a very good chance that as the battle escalates, passions will surge, the tattered fabric of professionalism will dissolve, and public revulsion for both parties will explode.
If you are leading one of the greatest democratic institutions in history, it's irresponsible to lead it into this bloody unknown if a deal on the table will give you much of what you want. As one senator who supports changing the filibuster rules says, "Is this what you want on your obit?"
Second, Frist should have grabbed this offer because it's time for senators to re-establish the principle that they, not the outside interest groups, run the Senate. Right now, most senators want to avoid a meltdown. It's the outside interest groups that are goading them into the fight.
[...]
Sometimes statesmanship isn't television combat. It's just a clever wink and a prudent nod. It's just possible that Bill Frist and his colleagues might have something to learn from the spirit of Henry Clay.
Brooks' reference to Henry Clay refers to a historic stateman who served in both the House and the Senate and ran for president four times. He from the beginning of his career advocated to contain the "spoils system" where by the party in power monopolizes political appointments. His concern was very similar to Madison's about the "tyranny of the majority".
The US has traditionally protected it's Democracy by preserving a pluralistic decision making process where a broad spectrum of society influences political outcomes. The right-wing extremists leading our government today wish to limit participation to those who have the most financial interest and lean our democracy towards plutocracy, clearly not in the interests of the majority of Americans.
Complete Article
The New York Times
May 1, 2005
OP-ED COLUMNIST
Let's Make a Deal
By DAVID BROOKS
Bill Frist should have taken the deal.
Last week, the Senate Democratic leader, Harry Reid, made an offer to head off a nuclear exchange over judicial nominations. Reid offered to allow votes on a few of the judges stuck in limbo if the Republicans would withdraw a few of the others.
But there was another part of the offer that hasn't been publicized. I've been reliably informed that Reid also vowed to prevent a filibuster on the next Supreme Court nominee. Reid said that if liberals tried to filibuster President Bush's pick, he'd come up with five or six Democratic votes to help Republicans close off debate. In other words, barring a scandal or some other exceptional circumstance, Reid would enable Bush's nominee to get a vote and probably be confirmed.
Reid couldn't put this offer in writing because it would outrage liberal interest groups. Frist said he'd think about it, but so far he's let it drop - even though clearing the way for a Supreme Court pick is one of the G.O.P. goals in this dispute.
Speculation about why Frist has let it drop goes in different directions. Perhaps he didn't know if he could trust Reid to make good on his promise. Perhaps he didn't think he could sell this agreement to his own base without publicizing this private part of the deal. Perhaps he wants to keep this conflict going to solidify his support among social conservatives for his presidential run. Perhaps he believes as a matter of principle the judicial filibuster must be destroyed.
At any rate, it's now more likely that Republicans will go ahead and change the filibuster rules, and Democrats will begin their partial shutdown of the Senate.
But Frist should have grabbed Reid's offer. He should have done it, first, because while the air is thick with confident predictions about what will happen if the nuclear trigger is pulled, nobody really knows. There is a very good chance that as the battle escalates, passions will surge, the tattered fabric of professionalism will dissolve, and public revulsion for both parties will explode.
If you are leading one of the greatest democratic institutions in history, it's irresponsible to lead it into this bloody unknown if a deal on the table will give you much of what you want. As one senator who supports changing the filibuster rules says, "Is this what you want on your obit?"
Second, Frist should have grabbed this offer because it's time for senators to re-establish the principle that they, not the outside interest groups, run the Senate. Right now, most senators want to avoid a meltdown. It's the outside interest groups that are goading them into the fight.
Of course the groups want a fight. The activists get up every morning hoping to change the judiciary, dreaming of total victory. Of course they're willing to sacrifice everything else for that cause. But senators are supposed to know that serving the interest groups is not the same as serving the people: it is serving a passionate but unrepresentative minority of the people. At some point, leaders are supposed to stand up to maximalists, even the ones they mostly agree with.
Finally, it's time to rediscover the art of the backroom deal. There are two ways the Senate can work. The Senate could be a legal battleground in which the two parties waged all-out struggles to rig the procedures so they got what they want. In this model, the Democrats would go on abusing the filibuster until the Republicans muscled through procedural changes.
Or the Senate could be the home of informal arrangements. In this model, leaders of the two parties would get together - yes, often in secret - and make reasonable bargains. They would rarely settle things on pure principle, but they'd hope for agreements in which each side achieved a portion of its goals. They wouldn't try to decide once and for all whether the filibuster was good or evil. They'd allow it, within reason. This backroom deal-making model went out of fashion after Watergate, but it is much better than what's come since.
The deal Reid was heading toward, and the deal that other senators like Ben Nelson are still working toward, would give Democrats some say over confirmations. But it would give Republicans up or down votes on most nominees, including the big ones, for the Supreme Court.
Sometimes statesmanship isn't television combat. It's just a clever wink and a prudent nod. It's just possible that Bill Frist and his colleagues might have something to learn from the spirit of Henry Clay.
E-mail: dabrooks@nytimes.com
Copyright 2005 The New York Times Company
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