Power vs. Popular Will
By Alan Nathan
Published May 4, 2005
Often when clashes occur between Republicans and Democrats,
it sounds like an argument between two kids in class, each declaring
his intent to beat up the other but neither having the temerity
to take it outside. Such profiles in courage are now on display
throughout Capitol Hill.
Under current Senate rules, minority opinion can stop a judicial
nominee in the 100-member body through use of the filibuster,
providing that the majority is
unable to muster 60 votes. It's a dilatory maneuver normally reserved for
opposition to legislation. The Republican leadership, under
the auspices of Sen. Bill
Frist of Tennessee, is threatening to strip away the filibuster,
believing it should
be limited only to battles over legislation and not applied to the "advice
and consent" role of the Senate as referenced in Article 2, Section 2 of
the Constitution. The Democrats are apoplectic about this and are promising to
paralyze the Senate should the GOP move forward with what Senate Minority Leader
Harry Reid of Nevada characterizes as a violation of "checks and balances."
"Checks and balances" is a term of art referring to the inter-dependency
of the executive, legislative and judicial branches of our government. However,
referencing this term is not a license for the minority party to have majority
sway in the Senate — a chamber that's only one-half of one branch.
Democrats want the political force of the Republicans without the numeric
force to attain
it. To let them have such leverage through the filibuster, a non-constitutionally
guaranteed entitlement, is to deny the larger agreeing block of voters
their proportional representative voice. You don't get to enjoy the very
you lost at the ballot box.
Democrats are celebrating polls showing that 66 percent of Americans are
against Republicans removing the filibuster. But polling at this juncture
is like telling
the jury to provide a verdict only after hearing from the prosecution.
Surveys are often behind the curve of what folks eventually feel once they're
aware of different facts. Polls taken three years ago showed a slight majority
for the United Nations. Those same pollsters now illustrate a dramatic
drop to the 40s because more light has been shined upon that institution's
ills — ills that have existed for years but were failings to which
citizens were impervious when first asked about their perspectives.
For example, thanks to liberal ads, most Americans mistakenly think that
jettisoning the filibuster would be a break from the intent of our Founding
York Democratic Sen. Charles Schumer says, "we're in the ramp-up to a constitutional
crisis." Well a quick scanning of our old daddies' Constitution would reveal
in Article 1, Section 5 that, "Each House may determine the rules of its
proceedings, punish its members for disorderly behavior, and, with the concurrence
of two thirds, expel a member." In short, the party in power enjoys
the greatest influence over said determination of rules. It appears that
ones in a crisis are those on the losing end of an argument. (Perhaps that's
why Mr. Reid has been backpedaling a bit on the rhetoric and making overtures
to Mr. Frist on two of President Bush's 10 conservative judicial nominees.)
Strangely however, some in the GOP are reticent about backing Mr. Frist because
they're worried that the Democrats might make good on their threat to stall
the Senate. They have business constituents and lobbyists expecting Congress
to address other legislative matters, because, well, darn it, they've paid
good money for laws and they're tired of waiting. Others show compunction
they'd like this tool as an option for when they might again be in the minority.
What these lion-hearts are forgetting is that if this use of the filibuster
is wrong while it hinders you, it's equally wrong when it helps. There's
high ground if you're only at the top because the water is rising.
Ultimately, the greatest source of fear is the voting citizenry. But a paradox
in representative government is that political power can legitimately go
against popular will, even though earlier popular will is what placed that
power in office.
That's because the electorate is driven more by long-term sentiment over
many issues in the aggregate versus short-term feelings over a few in the
the Republican Party is free to secure a greater reach into the future by
fighting now for these lifetime judicial appointments. Just as similarly
be the Democrats when it's their turn to have both the White House and the
Senate. Scary, huh?
Alan Nathan, combative centrist, columnist, speaker and the nationally syndicated host of "Battle Line With Alan Nathan" on the Radio America Network.