Judiciary

Byrd, Kennedy Need History Lesson

Longtime Democratic Senators Robert Byrd (W.Va.) and Teddy Kennedy (Mass.) made phony–and hypocritical–arguments last week when each spoke passionately against employing the nuclear option to end the Democrats’ unprecedented use of the filibuster on judicial nominees.

Twenty-five years ago, however, it was then-Majority Leader Byrd who took the Senate floor to clearly state his belief that the Senate could change its rules and procedures with a majority vote–a marked contrast from Byrd’s argument now.

“There is no higher law, insofar as our government is concerned, than the Constitution,” Byrd proclaimed on Jan. 15, 1979. “The Senate rules are subordinate to the Constitution of the United States.  The Constitution in Article I, Section 5, says that each house shall determine the rules of its proceedings. … This Congress is not obliged to be bound by the dead hand of the past. … The first Senate, which met in 1789, approved 19 rules by a majority vote.  Those rules have been changed from time to time. …”

Byrd continued: “So, I say to senators again that the time has come to change the rules.  I want to change them in an orderly fashion.  I want a time agreement.  But, barring that, if I have to be forced into a corner to try for a majority vote, I will do it because I am going to do my duty as I see my duty, whether I win or lose.  If 51 senators do not back me up in that, I will have done my duty.  They will have done theirs as they see fit.  I believe that they will come to see that, if we can only change an abominable rule by a majority vote, that it is in the interests of the Senate and in the interests of the nation that the majority must work its will.  And it will work its will.”

Kennedy, likewise, gave an equally passionate speech about the Senate’s history on Feb. 20, 1975. 

“But the Constitution enshrines no prohibition on action by the people’s representatives in Congress that may be construed as justifying the filibuster rule.  Under our fundamental constitutional scheme, the rights of the minority are protected by a series of specific provisions, none of which has any relevance to the general rules by which the House and Senate perform their legislative functions,” Kennedy said on the Senate floor. 

“As the examples I have cited make clear, the Founding Fathers knew how to say ‘two-thirds.’ But they wisely left the choice of rules in other areas to the Senate and House, without tying the hands of future generations. Thus, the filibuster rule is not enshrined in the Constitution.”


Sign Up