A Majoritarian Filibuster

The Senate showdown over filibusters to block judicial nominations is bringing out the worst features of American partisanship. Republicans claim that President Bush's historically thin re-election margin gives him a mandate to appoint right-wing ideologues to lifelong positions in federal courts. Democrats argue that Senate "tradition" means that any 41 Senators should be able to block the clear majority by preventing nominations from even coming to a vote. The rest of us can only shake our heads in dismay.

Democracy means nothing less than majority rule. Any parliamentary trick that allows a political minority to block action wanted by the majority is not only anti-democratic, it's dangerous. We live in an age where government simply must address serious problems like the federal budget deficit, skyrocketing health care costs, and a failing education system. If minorities can forever block action, we run the risk of bankrupting future generations, being unable to care for our sick, and not teaching future generations how to solve the mess we've left them.

But the filibuster, which requires 60 Senate votes in order to cut off debate and bring an issue to a vote, does not always lead to minority rule. Because the makeup of the Senate does not reflect America's population, sometimes 41 Senators actually represent a majority of Americans. In fact, the 40 Senators from the largest twenty states collectively represent 75% of the voting age population. Twenty of these Senators are Democrats, and twenty Republican. It is completely consistent with democracy for these Senators to block action by the others who do not actually represent a majority.

Rather than going nuclear and shutting down the Senate, the two parties should agree that whenever enough Senators support a bill to represent a majority of Americans, it should be brought to a vote.

Even judicial nominees, no matter how extreme, deserve an up or down vote. However, in order to ensure that the judiciary fulfills its proper role as an interpreter of laws, not a creator of laws, judges should only be confirmed if they have at least two-thirds support in the Senate. This would ensure that judges have bi-partisan support and would reduce the number of activist judges on either side.

Ideally, both parties would agree to this commonsense approach to the Senate rules. But if they don't, Democrats could adopt this system on their own. The forty-four Democrats in the Senate represent 49.6% of the voting age population of America. If Independent Jim Jeffords and any one Republican Senator joined all the Democrats, that group would represent a majority of the country. Forty of these Senators could use the existing, flawed, filibuster rule to prevent a vote on any bill that was not backed by Senators who represent a majority of Americans. Forty Democrats could similarly block votes on judicial nominees who lack supermajority support of two-thirds of the population.

This calculus disregards the traditional role of the Senate, which was not to represent the population but to represent the artificial territorial lines that we have divided America up into - the states. While this tradition served some purpose during the great compromise more than 200 years ago that allowed the thirteen colonies to join into the United States, it is high time we moved past this anti-democratic feature of American government.

By following these self-imposed rules while in the minority, Democrats would be in a strong position to institutionalize these rules if they win back control of the Senate. Further, they would gain credibility with ordinary voters by adhering to rules that are fair. This would be a far better posture in the filibuster debate than simply relying on anti-democratic traditions.