Commentary

Collateral Damage from the Nuclear Option

Republicans and conservatives are in high dudgeon over Senate Democrats’ refusal to let the Senate vote on some of President Bush’s judicial nominations. “This filibuster is nothing less than a formula for tyranny by the minority,” says Senate Majority Leader Bill Frist.

Frist speaks for many conservatives who want to change the rules of the Senate on a simple majority vote, to eliminate the filibuster for judicial nominations. Fifty-five Republicans, 55 votes to change the Senate’s rules, case closed.

But those conservatives are being ahistorical, short-sighted, and unconservative. Judicial nominations are important, but so are our basic constitutional and governmental structures. Conservatives aren’t simple majoritarians. They don’t think a “democratic vote” should trump every other consideration.

The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it. Everything about the Constitution — enumerated powers, separation of powers, two bodies of Congress elected in different ways, the electoral college, the Bill of Rights — is designed to protect liberty by restraining majorities.

The Senate itself is apportioned by states, not by population. California has 53 members of the House to Wyoming’s one, but each state gets two senators. If each senator is assumed to represent half that state’s population, then the Senate’s 55 Republicans represent 131 million people, while its 44 Democrats represent 161 million. So is the “democratic will” what the 55 senators want, or what senators representing a majority of the country want? Furthermore, the Senate was intended to be slower and more deliberative. Washington said to Jefferson, “We put legislation in the senatorial saucer to cool it.”

The Founders didn’t invent the filibuster, but it is a longstanding procedure that protects the minority from majority rule. It shouldn’t be too easy to pass laws, and there’s a good case for requiring more than 51 percent in any vote. And supermajorities make more sense for judicial nominations than they do for legislation. A bill can be repealed next year if a new majority wants to. A judge is on the bench for life. Why shouldn’t it take 60 or 67 votes to get a lifetime appointment as a federal judge?

Throughout the 20th century, it was liberal Democrats who tried to restrict and limit filibusters, because they wanted more legislation to move faster. They knew what they were doing: they wanted the federal government bigger, and they saw the filibuster as an impediment to making it bigger. As Norman Ornstein of the American Enterprise Institute writes, the filibuster “is a fundamentally conservative tool to block or retard activist government.”

Conservatives know this. For decades they have resisted liberal efforts to grease the Senate’s wheels. In the 19th century, Senate debate was unlimited. In 1917, at Woodrow Wilson’s prodding, the Senate adopted Rule 22, which allowed 67 senators to invoke cloture and cut off a filibuster. In 1975 that quintessential big-government liberal Walter Mondale moved in the post-Watergate Senate to cut off debate with a simple majority, to make it that much easier to advance the Democrats’ legislative agenda. Conservatives resisted, and the Senate compromised on 60 votes to end a filibuster.

Conservatives may believe that they can serve their partisan interests by ending filibusters for judicial nominations without affecting legislative filibusters. But it is naïve to think that having opened that door, they won’t walk through it again when a much-wanted policy change is being blocked by a filibuster — and naïve in the extreme to think that the next Democratic Senate majority won’t take advantage of the opening to end the filibuster once and for all.

In the play A Man for All Seasons that great conservative St. Thomas More explained to his friend Roper the value of laws that may sometimes protect the guilty or lead to bad results. Roper declared, “I’d cut down every law in England … to get at the Devil!” More responded, “And when the last law was down, and the Devil turned ‘round on you, where would you hide?”

American constitutional government means neither majoritarianism in Congress nor acquiescence to the executive. If conservatives forget that, they will rue the day they joined the liberals in trying to make the Senate a smaller House of Representatives, greased to make proposals move quickly through the formerly deliberative body. The nuclear option will do too much collateral damage.

David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer.