Colbert I. King: The Filibuster: A Tool for Good and Bad

Colbert I. King, in the Washington Post (6-18-05):

Since reaching the so-called bipartisan compromise on judicial nominees -- in which Democrats were sold the idea of laying down their arms, i.e., the filibuster -- the Senate has confirmed six of the Bush administration's most conservative judges, including the most extremist: Priscilla Owen, Janice Rogers Brown and William Pryor. On Thursday the Senate Judiciary Committee approved its latest proposed lifetime appointee to America's second-highest court: U.S. District Judge Terrence Boyle, a Jesse Helms protege and a candidate for extended floor debate if ever there was one. As we ponder whether Senate Democratic leaders and their satellites in the lobby still have the stomach for a fight, let's further contemplate the legislative weapon called the filibuster.

In waging war against Senate Republican leader Bill Frist's "nuclear option" for changing the Senate's rules, several civil rights lobbyists have hailed the filibuster as essential to the system of checks and balances and a promoter of cooperation and compromise. That hallowed view of the filibuster is not reflected in the annals of civil rights history. In fact, once upon a time the aim was to kill it.

In 1948 America's foremost civil rights organization, the NAACP, joined by stalwart liberal senators Hubert H. Humphrey of Minnesota and Paul Douglas of Illinois, led the charge to reform cloture Rule XXII, which required a vote by two-thirds of the Senate to stop a filibuster. For decades, the filibuster, used by southern Democrats, was a death sentence for civil rights bills...

...The filibuster was not regarded as a protector of bedrock values back in the day when lynching, Jim Crow and racial injustices were protected by the U.S. Senate.

Ah, but that was then and this is now: a Senate majority that cannot be counted on to ensure the appointment of a fair federal judiciary that is supportive of laws protecting the rights of Americans. Hence, with this current situation comes a strategy designed to address the needs of the day: the filibuster.

Is that wrong? When the filibuster is all that stands between the federal bench and judicial advocates of 19th-century federalism, I say no. Besides, the context in which the filibuster is now being deployed is also different. Segregationists used the filibuster to defeat laws "on which the rights of millions of people of color depend," as Rep. Melvin L. Watt (D-N.C.), chairman of the Congressional Black Caucus, put it the other day. Today it is being used to protect those same rights against foes of judicial enforcement.

But let's get real: There is nothing sacred about the filibuster. It has been used in the past for ill. Now it defends the good. It is a legislative device used to achieve victory or at least stave off defeat -- no more, no less. Besides, the filibuster debate masks a larger challenge. The fact that the filibuster is now used to protect mainstream American jurisprudence from assault only goes to show how much ground has been lost since Mitchell, Rauh and a bloc of liberal senators defended the Supreme Court from attack in the '50s. The political pendulum has indeed swung; the filibuster is no permanent bulwark against that.

Supporters of an independent judiciary and civil rights laws must broaden their focus beyond the White House. Congress, as in the days of Mitchell and Rauh, is also the battlefield. Yes, watch who's on the road to the presidency. But also keep the spotlight on House and Senate races. There's no better place to start than in the states of that "bipartisan" group of senators who capitulated on May 23, and in the states of those Republican and Democratic leaders who cheered them on. Washington lobbyists, proud to be seated near the table where senators know them by name, may quake at the thought. But the rights of millions depend on a strong political response -- without regard to party...