This attitude was by no means confined to the White House. I remember heading toward the Senate floor one day in early March and being stopped briefly by a dark-haired young man. He led me over to his parents, and explained that they had traveled from Florida in a last-ditch effort to save a young woman — Terri Schiavo — who had fallen into a deep coma, and whose husband was now planning to remove her from life support. It was a heartbreaking story, but I told them there was little precedent for Congress intervening in such cases — not realizing at the time that Tom DeLay and Bill Frist made their own precedent.
The scope of presidential power during wartime. The ethics surrounding end-of-life decisions. These weren’t easy issues; as much as I disagreed with Republican policies, I believed they were worthy of serious debate. No, what troubled me was the process — or lack of process — by which the White House and its congressional allies disposed of opposing views; the sense that the rules of governing no longer applied, and that there were no fixed meanings or standards to which we could appeal. It was as if those in power had decided that habeas corpus and separation of powers were niceties that only got in the way, that they complicated what was obvious (the need to stop terrorists) or impeded what was right (the sanctity of life) and could therefore be disregarded, or at least bent to strong wills.
The irony, of course, was that such disregard of the rules and the manipulation of language to achieve a particular outcome were precisely what conservatives had long accused liberals of doing. It was one of the rationales behind Newt Gingrich’s Contract with America — the notion that the Democratic barons who then controlled the House of Representatives consistently abused the legislative process for their own gain. It was the basis for the impeachment proceedings against Bill Clinton, the scorn heaped on the sad phrase “it depends on what the meaning of the word ‘is’ is.” It was the basis of conservative broadsides against liberal academics, those high priests of political correctness, it was argued, who refused to acknowledge any eternal truths or hierarchies of knowledge and indoctrinated America’s youth with dangerous moral relativism.
And it was at the very heart of the conservative assault on the federal courts.
Gaining control of the courts generally and the Supreme Court in particular had become the holy grail for a generation of conservative activists — and not just, they insisted, because they viewed the courts as the last bastion of pro-abortion, pro-affirmative-action, pro-homosexual, pro-criminal, pro-regulation, anti-religious liberal elitism. According to these activists, liberal judges had placed themselves above the law, basing their opinions not on the Constitution but on their own whims and desired results, finding rights to abortion or sodomy that did not exist in the text, subverting the democratic process and perverting the Founding Fathers’ original intent. To return the courts to their proper role required the appointment of “strict constructionists” to the federal bench, men and women who understood the difference between interpreting and making law, men and women who would stick to the original meaning of the Founders’ words. Men and women who would follow the rules.
Those on the left saw the situation quite differently. With conservative Republicans making gains in the congressional and presidential elections, many liberals viewed the courts as the only thing standing in the way of a radical effort to roll back civil rights, women’s rights, civil liberties, environmental regulation, church/state separation, and the entire legacy of the New Deal. During the Bork nomination, advocacy groups and Democratic leaders organized their opposition with a sophistication that had never been seen for a judicial confirmation. When the nomination was defeated, conservatives realized that they would have to build their own grassroots army.
Since then, each side had claimed incremental advances (Scalia and Thomas for conservatives, Ginsburg and Breyer for liberals) and setbacks (for conservatives, the widely perceived drift toward the center by O’Connor, Kennedy, and especially Souter; for liberals, the packing of lower federal courts with Reagan and Bush I appointees). Democrats complained loudly when Republicans used control of the Judiciary Committee to block sixty-one of Clinton’s appointments to appellate and district courts, and for the brief time that they held the majority, the Democrats tried the same tactics on George W. Bush’s nominees.
But when the Democrats lost their Senate majority in 2002, they had only one arrow left in their quiver, a strategy that could be summed up in one word, the battle cry around which the Democratic faithful now rallied:
Filibuster!
The Constitution makes no mention of the filibuster; it is a Senate rule, one that dates back to the very first Congress. The basic idea is simple: Because all Senate business is conducted by unanimous consent, any senator can bring proceedings to a halt by exercising his right to unlimited debate and refusing to move on to the next order of business. In other words, he can talk. For as long as he wants. He can talk about the substance of a pending bill, or about the motion to call the pending bill. He can choose to read the entire seven-hundred-page defense authorization bill, line by line, into the record, or relate aspects of the bill to the rise and fall of the Roman Empire, the flight of the hummingbird, or the Atlanta phone book. So long as he or like-minded colleagues are willing to stay on the floor and talk, everything else has to wait — which gives each senator an enormous amount of leverage, and a determined minority effective veto power over any piece of legislation.
The only way to break a filibuster is for three-fifths of the Senate to invoke something called cloture — that is, the cessation of debate. Effectively this means that every action pending before the Senate — every bill, resolution, or nomination — needs the support of sixty senators rather than a simple majority. A series of complex rules has evolved, allowing both filibusters and cloture votes to proceed without fanfare: Just the threat of a filibuster will often be enough to get the majority leader’s attention, and a cloture vote will then be organized without anybody having to spend their evenings sleeping in armchairs and cots. But throughout the Senate’s modern history, the filibuster has remained a preciously guarded prerogative, one of the distinguishing features, it is said — along with six-year terms and the allocation of two senators to each state, regardless of population — that separates the Senate from the House and serves as a firewall against the dangers of majority overreach.
There is another, grimmer history to the filibuster, though, one that carries special relevance for me. For almost a century, the filibuster was the South’s weapon of choice in its efforts to protect Jim Crow from federal interference, the legal blockade that effectively gutted the Fourteenth and Fifteenth Amendments. Decade after decade, courtly, erudite men like Senator Richard B. Russell of Georgia (after whom the most elegant suite of Senate offices is named) used the filibuster to choke off any and every piece of civil rights legislation before the Senate, whether voting rights bills, or fair employment bills, or anti-lynching bills. With words, with rules, with procedures and precedents — with law — Southern senators had succeeded in perpetuating black subjugation in ways that mere violence never could. The filibuster hadn’t just stopped bills. For many blacks in the South, the filibuster had snuffed out hope.