judicial filibuster precedent and consquences

Jerome has written a moving diary at myDD about the historical use of the filibuster in the Senate, which he reminds us is known has traditionally served a watchdog role over abuse and excess of power by other branches of the government, including the House. He relates some relevant history involving FDR which has direct bearing on the present debate of whether filibustering of judicial nominees is a violation of the Senate's traditions or not.

Perhaps more directly relevant to our discussion of the "nuclear option" are the seven days in 1937, from July 6 to 13 of that year, when the Senate blocked Franklin Roosevelt's Supreme Court-packing plan.

Earlier that year, in February 1937, FDR sent the Congress a bill drastically reorganizing the judiciary. The Senate Judiciary Committee rejected the bill, calling it "an invasion of judicial power such as has never before been attempted in this country" and finding it "essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the Government." The committee recommended the rejection of the court-packing bill, calling it "a needless, futile, and utterly dangerous abandonment of constitutional principle. . . without precedent and without justification."

What followed was an extended debate on the Senate Floor lasting for seven days until the Majority Leader, Joseph T. Robinson of Arkansas, a supporter of the plan, suffered a heart attack and died on July 14. Eight days later, by a vote of 70 to 20, the Senate sent the judicial reform bill back to committee, where FDR's controversial, court-packing language was finally stripped. A determined, vocal group of Senators properly prevented a powerful President from corrupting our nation's judiciary.

But let's leave precedent aside. What's the harm, you might ask? What threat does the so-called "nuclear option" really pose? Jerome answers. Read on, for the more infinitely more compelling reason than mere precedent or tradition, to oppose the nuclear option, regardless of your party affiliation:

 

For the temporary gain of a hand-full of "out of the mainstream" judges, some in the Senate are ready to callously incinerate each Senator's right of extended debate. Note that I said each Senator. For the damage will devastate not just the minority party. It will cripple the ability of each member to do what each was sent here to do - - represent the people of his or her state. Without the filibuster or the threat of extended debate, there exists no leverage with which to bargain for the offering of an amendment. All force to effect compromise between the two political parties is lost. Demands for hearings can languish. The President can simply rule, almost by Executive Order if his party controls both houses of Congress, and Majority Rule reins supreme. In such a world, the Minority is crushed; the power of dissenting views diminished; and freedom of speech attenuated. The uniquely American concept of the independent individual, asserting his or her own views, proclaiming personal dignity through the courage of free speech will, forever, have been blighted. And the American spirit, that stubborn, feisty, contrarian, and glorious urge to loudly disagree, and proclaim, despite all opposition, what is honest and true, will be sorely manacled.

Yes, we believe in Majority rule, but we thrive because the minority can challenge, agitate, and question. We must never become a nation cowed by fear, sheeplike in our submission to the power of any majority demanding absolute control.