Posted on: Friday, May 20, 2005

EDITORIAL
Ending filibuster now will harm U.S. Senate

The U.S. Senate launched itself on a game of brinkmanship this week that threatens to fundamentally — and dangerously — change the very foundations of this important institution. The game centers on a dispute over judicial appointments proposed by President Bush.

The vast majority of Bush's 200 nominees have been approved. Only seven have been blocked by Democrats who consider them too far out of the judicial mainstream.

Among the seven are judges Priscilla Owen of Texas and Janice Rogers Brown of California. Democrats object to Owen's views on abortion and Rogers Brown's opinions on the proper role of government.

In reality, the battle is less about Owen and Rogers Brown than about the next expected nomination for the U.S. Supreme Court. Democrats are serving notice they will not tolerate a justice whose thinking is ideologically too far to the right.

But tolerate they must, if Senate Majority Leader Bill Frist follows through with his plan to force an end to a Democratic filibuster of the nominations. While it takes 60 votes to end a filibuster — votes the GOP does not have — Frist's plan would bar filibusters on judicial nominations with just a simple majority, 50 plus 1.

This proposal, called the "nuclear option," would forever change the way the Senate does business. While the filibuster may seem antiquarian and can be used to malicious ends, it has the beauty of allowing a substantial minority to keep things in check by balancing the majority's actions.

To their credit, some Republican senators rightly recognize that you don't change the rules in the middle of the game, noting that Republicans, too, have used the filibuster to their advantage when they were the minority party.

While blowing up the system is not the solution, clearly there's room for change in the rules governing the use of the filibuster. But those changes should take place in an atmosphere of calm debate — not in the red-hot moment of a fight over ideology.

One worthy compromise mentioned is a "declining" system, in which the number of votes needed to shut off a filibuster would slowly diminish over days and weeks, until finally a simple majority would suffice. This would protect the idea of full and adequate debate, while providing a parliamentary and sensible end to the game.

If Frist prevails next week when he intends to call for a majority vote on whether the rule as it applies to judges is unconstitutional, then no Senate rule or procedure is safe.

Some senators are working hard to achieve a compromise that would avert this showdown. Hawai'i's senators, particularly Dan Inouye with his deep and abiding respect for the rules and traditions of the Senate, should be part of this compromise effort.