Imagine a world where:
You have just imagined what America would be like without the filibuster.
Virtually every federal restriction on abortion exists because senators such as Gordon Humphrey (R.-N.H.) and Bob Smith (R.-N.H.) filibustered (or threatened a filibuster) against a pro-abortion majority seeking to delete them.
The 2nd Amendment is still viable-and "gay marriage" is not a federally guaranteed right-because Jim McClure (R.-Idaho) and Jesse Helms (R.-N.C.) filibustered a "must-pass" omnibus crime bill.
Now, a gaggle of "conservatives" with no historical memory and no knowledge of the Senate rules are working to do away with the filibuster-the Senate's tradition of unlimited debate. The ostensible purpose is to allow the Senate to rubber stamp the Bush Administration's judicial nominees.
Make no mistake: You cannot eliminate the judicial filibuster without effectively destroying the legislative filibuster as well.
Proponents of the "nuclear option" argue, by inference, that filibustering judicial nominees is unconstitutional because the Constitution specifies a two-thirds majority for treaty ratification, but not "advice and consent."
But by giving the Vice President the tie-breaking vote when "they be equally divided," the Constitution makes it explicit that legislative issues are to be decided by majority vote.
If the Senate's rule-making powers under Article I, Section 5, do not allow a filibuster for nominees, they certainly don't allow a filibuster for legislation.
The first time a major legislative controversy occurred, the legislative filibuster would be obliterated by the same procedures used to destroy the judicial filibuster.
The "nuclear option" is even worse. Under this scenario, the majority leader seeks a ruling that the Senate is "not a continuing body." This means the rules from the previous Congress are not binding, and the leadership alone determines which rules continue to be valid.
When a Democrat majority leader attempted to use this procedure in the 96th Congress to eliminate the legislative filibuster, conservatives fought him tooth and nail. Majority Leader Bob Byrd (D.-W.Va.) was then sitting on a 58-42 majority. A few months later he was in the minority.
Are we so sure Bush's tenuous victory against a Massachusetts liberal guarantees Republicans permanent control?
A few additional points:
Conservatives may want to remember the record of recent Republican Presidents: Eisenhower's first contribution to the bench was Chief Justice Earl Warren. Reagan's first pick-Sandra Day O'Connor-sent conservatives into a conclave contemplating, ironically, a filibuster. Gerald Ford had only one pick, and gave us John Paul Stevens. George H.W. Bush's first associate justice was David Souter-arguably the court's most liberal member. And Nixon? His first successful associate justice nominee was Harry Blackmun-yes, that Harry Blackmun.
Read Manuel Miranda's case FOR ending the Democrats' obstructionism here.
