For over two centuries, a technique called a filibuster has been employed in
the U.S. Senate. It enables the party in the minority -- or a senator with a
position not shared by the majority -- to make their voices heard against those
politicians who control the Senate. One or more senators simply talk endlessly,
preventing the Senate from continuing its business. Many people saw the
effectiveness of a filibuster by watching the Frank Capra's 1939 movie "Mr.
Smith Goes to Washington." Jonathan Turley of George Washington Law
School wrote: "Standing alone on the floor of the U.S. Senate, young Sen.
Jefferson Smith [played by Jimmy Stewart] refuses to yield to the corrupt plans
of his powerful colleagues. Against all odds, he invokes the filibuster — the
right of a single person to hold the floor against the world — as long as he can
continue to stand and to speak. 1
In the movie, he eventually swayed public opinion who pressured their senators. Mr. Smith
eventually won his case, only 44 minutes short of a full 24 hours of talking.
People tend to have one of two viewpoints concerning the use of the filibuster:
Those in the minority position generally take the same position as was
stated In the movie, where the filibuster was portrayed as "democracy's
finest show ... the American privilege of free speech in its most dramatic
Those in the majority position generally view the filibuster as the "tyranny
of the minority." Senate business grinds to a halt until one side gives
In 2005-APR, it is the Democrats who are in the minority; many want to
preserve the filibuster at all cost. It is the Republicans who are in the
majority; many want to eliminate or at least reduce the effectiveness of the
filibuster. In the past, their positions have been reversed, and their opinion
of the filibuster switched accordingly.
Originally, a single senator could filibuster as long as he was able to stand
and speak. Strom Thurmond (D & R, SC) holds the record. In 1957, he filibustered
against the Civil Rights Act for 24 hours and 18 minutes in a vain
attempt to deny equal rights to African-Americans. He only stopped after
physicians warned him of imminent kidney failure. Under current rules, a
filibuster can be terminated if a super majority of 60 senators can be found to
vote in favor of cloture.
The problem in early 2005:
The Republicans only had 55 members in the Senate. That was five short of the
60 needed to invoke cloture, assuming that voting followed strict party lines.
They would have needed a combination like all of their own membership plus at least five
Democrats to terminate a filibuster. This is sometimes an impossibility,
particularly over a situation that involves conflicting moral, religious or
Senator Bill Frist (R-TN) led a movement to essentially eliminate the
200-year old right to filibuster --"one of the longest congressional
traditions in the nation's history.....Frist is proposing that Vice
President Cheney, as presiding officer, should simply rule any filibuster as
'out of order.' Frist needs only 50 Republican senators to defeat any Democratic
challenge to such a ruling." 1
This plan was called the "nuclear option" by Democrats, presumably
because of the disastrous implications for their party -- and for the Republican
party if they become the minority party in the future. It was called the "constitutional
option" by most Republicans who feel that, in the words of CNN
News: "...forefathers never intended to let
a minority of the Senate block a president's choices for judgeships." 10
This proposal to eliminate the filibuster emerged
in the spring of 2005 because of a problem confirming federal judges, who had
nominated by the president. This has been a chronic problem. "In
President Clinton's second term, the Republicans confirmed 35 out of 51
nominations to the appellate courts. In Bush's first term, 35 out of 52 have
been confirmed." 1 This
is a drop of 69% to 67% -- apparently sufficient to distress some senators. A
difference in tactics by the two parties might have contributed to the "shock"
of the Republicans: during Clinton's second term, Republicans tended to kill nominations
in committee; during Bush's first term, the Democrats tended to kill nominations on the
floor of the Senate.
Democratic senators \threatened to slow Senate activity to a crawl if
their right to filibuster was removed. A few Republican senators were also
concerned that tampering with the filibuster will harm the Senate in the future.
A compromise was reached between a group of senators from both parties. The
Democrats agreed to let some of the nominees receive a straight up and down vote
without a filibuster. They also agreed to limit the filibuster in the future to
cases of extreme importance. In return, the Republicans agreed to let the Senate
rules regarding filibusters remain intact as they had been for hundreds of
The future problem -- the U.S. Supreme Court:
The American public is deeply divided on just about every political, moral,
ethical and religious concern. The Supreme Court is similarly divided. Over the
past decade, an amazing number of such matters before the Court were decided by
a 5 to 4 vote. For example:
Lawrence v. Texas
ruling, the court decided that states no longer have the constitutional
authority to criminalize private consensual activities, simply on the
grounds that a majority of the population considered the behavior to be
The court, in
Stenberg v, Carhart declared as unconstitutional
the Nebraska law which banned D&X pregnancy terminations (popularly referred
to as Partial Birth Abortions). That ruling had the effect of declaring
unconstitutional dozens of similar state laws.
In 2002-JUN, the court decided that the Cleveland voucher program which
funnels state money to parents to pay tuition in private -- generally
religious -- schools is constitutional.
In 2005-MAR, the court decided by a vote of 5 to 4 that 16 and 17
year-old offenders could not be
sentenced to be executed.
If Roe v.
Wade were revisited by the court today, there is a near consensus that
it would be upheld by a 5 to 4 vote.
The replacement of a single "liberal" Justice on the U.S. Supreme Court with
a "conservative" one could reverse these and other decisions. This would have a
profound effect on the American culture. Depending upon their political,
cultural and religious views, some Americans would see the culture improving;
others would see it degenerating.
This conservative/liberal split in
the Supreme Court is paralleled by two conflicting ways of interpreting laws and
As living documents: Under this viewpoint, the document's meaning is continually
evolving to meet changing cultural beliefs, practices, and knowledge. For
Trop v. Dulles (1958) the court discussed the evolution of the meaning
of the cruel and unusual punishment clause in the U.S. Constitution's Eighth
Amendment . They wrote that "The Amendment must draw its meaning from the
evolving standards of decency that mark the progress of a maturing society."
Justice Scalia describes what he called this "conventional fallacy"
as interpreting the meaning of the text : "...from age to age [as]
whatever the society (or perhaps the Court) thinks it ought to mean."
As enduring documents: Justice Scalia, and other conservative
Justices on the Supreme Court, agrees with this position. They are often
referred to as "strict constructionists." They interpret a legal
document as meaning "today not what current society (much less the Court)
thinks it ought to mean, but what it meant when it was adopted." 11
Viewing the Bill of Rights and the rest of the U.S. Constitution as
an enduring document requires that the courts consider the society and the
era in which the text was actually written. They interpret the text within
the belief systems of that time. On matters such as
the death penalty,
equal rights for
gays and lesbians, and
other "hot" topics,
there has been considerable change during the intervening centuries. One
only has look at the racist, sexist and homophobic beliefs of the writers of the Constitution and
Bill of Rights to realize what a major effect this interpretive method could
have. At the time these documents were written:
Human slavery, primarily of
Afro-Americans, was generally accepted in
America. The Bill
of Rights initially applied only to free persons.
Women were not considered equal to men;
they were denied the right to vote, to enter certain professions, and to hold public office until the
late 19th or early 20th century.
Same-sex sexual behavior was regarded as a
capital offense. Sexually active gays had no right to live.
Today's understanding is immaterial when it
comes to interpretation of the Constitution as an enduring document. The
U.S. Constitution does not discuss such topics as sexual orientation or abortion. Thus,
seen as an enduring document, it is neutral on these and similar topics. A
state could pass a law criminalizing same-sex behavior or making any or all
abortions illegal. It could not be declared unconstitutional if a majority
of Supreme Court justices become strict reconstructionists.
It is generally acknowledged that
President Bush will nominate three new justices later in his 2004 to 2008 term.
He has indicated that he will use Justices Scalia and Thomas as a model
when selecting new nominees for the Supreme Court. Both are strict
reconstructionists who interpret the Constitution and Bill of Rights as enduring
documents. Although the debate in 2005-Spring over the Senate's filibuster rules
are related to the appointment of federal justices, the background motivation
may well be driven by future U.S. Supreme Court nominees. If President Bush is
successful in having his nominees confirmed by the Senate, then court rulings
which were decided by a vote of 5 to 4 might be regularly overturned by a vote
of 7 to 2. If the nominees are young, their effect on the court, and thus on the
country, could last for decades. The only way to block nominees might be the
Democratic senators' use of the filibuster.
The Religious connection:
Religious and social conservatives have been distressed for some time at
decisions by senior state courts and the U.S. Supreme Court on matters related
to culture, religion and morality. Of particular concern were decisions by:
The 1996-MAY-20 decision by the U.S. Supreme Court which declared
Colorado's Proposition 2 to be unconstitutional. It would have prohibited
local municipalities from passing bylaws which protect persons with a
heterosexual, homosexual or bisexual
The 2003-NOV-19 decision by the Massachusetts Supreme Judicial Courtwhich ruled that the clause in the state constitution which bans
discrimination on the basis of sex logically requires the government to issue marriage licenses to same-sex couples,
and register their marriages.
Some of the decisions by the U.S. Supreme Court listed
On Sunday, 2005-APR-24, the Fundamentalist Christian social action group,
Family Research Council (FRC), will broadcast "Justice Sunday—Stopping
the Filibuster Against People of Faith." It will be a nationwide simulcast to
promote modifications to the filibuster rules in the Senate. It will be broadcast from the East
Campus of Highview Baptist Church in Louisville, KY. Well known
conservative Christian speakers include Dr. James Dobson, founder and head of
Focus on the Family, Dr. R. Albert Mohler, president of The Southern
Baptist Theological Seminary, and Chuck Colson, leader and founder of Prison
Fellowship Ministries. The Massachusetts Family Institute commented: "We are
experiencing a judicial crisis in America, as we have become a nation ruled less
and less by the consent of the governed and more and more by unelected judges.
Our judicial system can only apply justice fairly to all citizens when judges
follow the law, and stop writing their own. The filibuster is a valuable tool of
democracy when applied to legislation—as originally intended by our Founders—but
not when it is hijacked for partisan attacks against qualified judicial
nominees. The ‘Justice Sunday' simulcast will mark the beginning of a week in
which citizens from around the country are asked to call their Senators and ask
them to vote to stop the filibuster. It is very important that the Senate phones
ring off their hooks if we hope to return the Constitutional standard of a
simple majority necessary to approve judicial appointments. Some people believe
this will be the most important vote taken in the Senate in 75 years. Certainly,
we should keep it in our prayers." 4
Many conservative Christian groups seem to be
playing the "religion card." They are stating that filibusters are being
directed, presumably by Democrats, at "people of faith." For example:
The Iowa Family Policy Center refers to
"putting a halt to the use of filibusters against people of faith and
conservative judges." 7
The FRC's Washington Update says, in part: "The Democratic Party's
policy of intolerance against court nominees who are either people of faith
or those who won't endorse a radical liberal agenda...." 8
A flier for the event states: "the filibuster was once abused to
protect racial bias, and now it is being used against people of faith."
It is not clear whether the term "people of faith" is intended to
refer only to conservative Christians, or whether it includes all Christians,
all Judeo Christians, all theists, or all persons who are members of a religious
Tony Perkins of the FRC repeats the charge that the filibuster
battle is religiously based. He refers to filibusters as an attack by "a radical minority in the
Senate" against "people of faith." He
wrote on his web site: "
"Whether it was the legalization of abortion, the banning of school
prayer, the expulsion of the 10 Commandments from public spaces, or the
starvation of Terri Schiavo, decisions by the courts have not only changed
our nation's course, but even led to the taking of human lives. As the
liberal, anti-Christian dogma of the left has been repudiated in almost
every recent election, the courts have become the last great bastion for
liberalism....We now have a President who is committed to nominate judicial
candidates who are not activists, but strict constructionists -- judges who
will simply interpret the Constitution as it was written. We now have a
majority in the U.S. Senate that will confirm these nominees. However, there
is a radical minority that has launched an unprecedented filibuster against
these outstanding men and women." 5
Bob Edgar, the General Secretary of the National
Council of Churches USA (NCC), posted an article titled: "Disagreeing
Without Demonizing: NCC General Secretary Challenges Planners of 'Justice
Sunday' for Attacking Fellow Christians." 6 He challenges
the actions of conservative Christians who are mounting an attack on the
Senate's filibuster rules as "dangerous and divisive" to the nation's
religious and public life. He said:
"We are surprised and grieved by a campaign
launched this week by Family Research Council and Senate Majority Leader
Bill Frist, who said that those who disagree with them on President Bush’s
judicial nominees are 'against people of faith'."
"This campaign, which they are calling 'Justice Sunday,' should properly be
called 'Just-Us' Sunday. Their attempt to impose on the entire country a
narrow, exclusivist, private view of truth is a dangerous, divisive tactic.
It serves to further polarize our nation, and it disenfranchises and
demonizes good people of faith who hold political beliefs that differ from
"To brand any group of American citizens as 'anti-Christian' simply because
they differ on political issues runs counter to the values of both faith and
democracy. It is especially disheartening when that accusation is aimed at
fellow Christians. The National Council of Churches encompasses more than 45
million believers across a broad spectrum of theology and politics who work
together on issues important to our society. If they disagree with Senator
Frist's political positions, are these 45 million Christians now considered
People for the American Way, a liberal social
action group, commented on 2005-APR-20:
"Senate Majority Leader Bill Frist will stop
at nothing to push his 'nuclear option' on the American people. This Sunday,
he is speaking via closed circuit television to thousands of church
congregations organized by the radical right Family Research Council as a
part of 'Justice Sunday,' a desperate and offensive campaign claiming that
the 200 year-old Senate filibuster is being used to target people of faith."
"This is a campaign of religious McCarthyism. We must not let it pass
without calling Frist to account for his pandering to the Religious Right
and his unconscionable injection of religion into the business of Congress.
And House Speaker Tom DeLay's recent threats against the judges in the
Schiavo case make this all the more urgent."
"Frist and his 'Justice Sunday' allies want to clear the path for President
Bush's extreme far-right nominations to the federal courts, including the
Supreme Court. They can do it by nuking the filibuster, the last 'check and
balance' against the majority's abuse of power."
"The independence of the federal courts is all that stands between
democratic checks and balances in government and unchecked total far-right
domination. That independence rests on our ability to defeat the nuclear
option, which could come up for a vote as early as next week..."
"Radical Right groups have started running highly personal attack ads on
Senators who do not support the nuclear option. They're pulling out all the
stops now to force Frist to pull the trigger as early as next week!"
Two out of three Americans oppose change to filibuster rules: A
Washington Post/ABC News poll was published on 2005-APR-28. It shows
that 66% of Americans oppose tampering with the filibuster. Washington Post
reported that: "Even many Republicans were reluctant to abandon current
Senate confirmation procedures: Nearly half opposed any rule changes,
joining eight in 10 Democrats and seven in 10 political independents, the
poll found.....According to the poll, nearly half of the public said
Democrats are right to block the 10 contested Bush appointees, while
slightly more than a third said they are wrong....more than six in 10
Republicans said they think political leaders should rely on their religious
beliefs in making policy decisions, while an equally large proportion of
Democrats disagreed. Four in 10 Americans said they think religious conservatives play too
large a role in the Republican Party, a view shared by about half of all
Democrats and independents but only one in five Republicans. Conversely,
nearly as many Americans (35 percent) said liberals have too much influence
over the Democratic Party, a view held by nearly six in 10 Republicans."
The same poll revealed that most American adults oppose President Bush's
Social Security plan. There were drops in President Push's popularity ratings,
increasing pessimism about the economy and continuing concern about U.S.
involvement in Iraq. 11
Senators were able to reach a compromise in which
certain nominations proceeded, the filibustering rules remained unchanged, and
the Democrats promised to not fillibuster future court nominees, except in
extreme cases. Just such a case is expected in the second half of 2005 when
President Bush nominates a replacement for Justice
Sandra Day O'Connor.
Antonin Scalaia, "God's
Justice and Ours," First Things 123, 2002-MAY, Page 17 to 21.
"Justice Sunday: April 24," Massachusetts Family Institute,
E-Alert, 2005-APR-20. Their web site is at:
Tony Perkins, "Justice Sunday: Stop the Filibuster Against People of
Faith," Family Research Council, 2005-APR, at:
Bob Edgar, "Disagreeing Without Demonizing:
NCC General Secretary Challenges Planners of 'Justice Sunday' for Attacking
Fellow Christians," National Council of Churches, 2005-APR-18, at:
"Brace yourself. Frisk going nuclear!,"
People for the American Way, Email, 2005-APR-20. Their web site is at:
"Justice Sunday," Iowa Family Policy
Center, Internet newsletter, 2005-APR-21.
Tony Perkins, "Update on Justice Sunday,"
Washington Update, Family Research Council, 2005-APR-21.
"GOP building support for filibuster rule
change," CNN.com, 2005-APR-18, at: