Commentary
By Mari Jo Tropcich
Immediate Past President
Some of us will remember the stoic figure portrayed by Jimmy Stewart in “Mr. Smith Goes to Washington”. As a freshman Senator he stood alone, invoking a personal filibuster to defeat a proposal by the powerful leadership. We watched as, health failing, he refused to surrender the floor until his personal act of courage inspired the senior Senator to break with leadership and expose the conspiracy of destruction that had been directed against the idealistic freshman.
This is the image that most Americans have of a filibuster and its place in history. Unfortunately, this has not been the history nor is it close to how filibusters are now utilized.
When our country was founded, the framers were very sparse on directing how Congress should operate. The only procedural instruction given was: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
Over the first 60 years filibusters were not really a tool that was used. Debate was allowed to continue until all participants had their say. Formal filibuster action did not start taking prominence until the 1850’s.
From the 1850’s the use of filibusters grew. During this time, there was no procedure for ending a filibuster. In 1917 the Senate, controlled by the DEMOCRATS, decided they needed to limit filibusters. The DEMOCRATS established Rule 22, under which two-thirds of the Senators could vote to end a filibuster.
Rule 22 was originally applied only to legislative measures. There was no rule limiting filibusters on nominations. In 1949 the Senate, controlled by the DEMOCRATS, decided they needed to limit debate on nominations, so the DEMOCRATS decided to extend Rule 22 to cover nominations.
For the next 25 years the Senate lived with this rule. In 1975 the Senate, controlled by the DEMOCRATS, decided they needed to further limit the use of filibusters. That year, the DEMOCRATS changed the rule, lowering the requirement to a super-majority, 60 votes. Not surprisingly, in 1975 the DEMOCRATS had 60 seats in the Senate.
Now, 30 years later and 225 years into our nation’s history, the Republicans are making their first proposal to adjust the rules on filibusters and the DEMOCRATS cry “foul”. Can you spell H-Y-P-O-C-R-I-T-S?
These are not the only changes in filibusters. Through most of history filibusters were exactly what Jimmy Stewart did. They consisted of a group of Senators holding the floor by continually speaking. Only recently has the filibuster become a procedural strategy. Now a group only declares a filibuster and debate is ended. There are no heroics, no evidence presented, no persuasive oratory, only the filing of intent to filibuster. The Democrats are now attempting to use this procedure to stop the President’s appellate court nominations.
You notice I said, “appellate court”. To understand the Democrat’s strategy you must look at the federal court structure. There are the District Courts, the Circuit Courts of Appeals and the Supreme Court. There are hundreds of judges sitting on the District Courts where cases start, but not where they end. Cases of any note will progress through the appellate and some to the Supreme Court. These are the off-ramps of the federal system.
Democratic strategy is simple: If you control the off-ramps you control the policy. This is why the Democrats are focusing on the higher courts. This allows them to state, “We are approving 95% of the President’s nominations”. What they are not saying is that they are stopping 45% of his nominations to the higher courts. The Democrats want to control the off-ramps.
It is time the Democrats are recognized for what they are. I am proud that the President has pushed the nominations of the well-qualified individuals that the Democrats have been stonewalling. Some people have come to refer to the changing of the filibuster rules as the “nuclear option”. There is nothing “nuclear” about it. It is enforcing the Constitution.
The Constitution calls for “Advise and Consent”. In fact, except for the Supreme Court, the Constitution does not even require that. It says, “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone”. What would the Democrats say if the proposal was to pass total responsibility of appointments to the President?
If the Senate Democrats would like to preserve the current filibuster rules, they should let the nominations come to an up or down vote, and then in the next election the American people will decide if the nominations were justified. If not, other options would be to make the Democrats actually take the floor to filibuster the nominations and let C-SPAN show the public their Senate at work; adjust the rules again to require a simple majority to bring the vote; or, per the Constitution, just turn the whole process over to the President.
On a final note, I find it interesting that “Mr. Smith Goes to Washington”, which portrayed one person’s fight against the corrupt leaders of the Senate was made in 1939, a year in which the Democrats were the Senate leadership. Coincidence? I don’t think so.
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