NEW PROBLEM, NEW RULE:

The Senate Nears the Point of No Return (JEFFREY ROSEN, 5/22/05, NY Times)

"In the 19th century, the expectation was typically that if a majority of senators really wanted to pass something they would be able to do so," said Eric Schickler, a professor of government at Harvard University and co-author of a forthcoming book on the use of obstruction in the Senate.

Still, for much of the 19th century, party lines in the Senate were less sharp, which promoted a degree of interparty bargaining and compromise, especially when it came to the Senate's constitutional power to advise and consent to presidential nominations. This enabled minorities in the Senate to block the judicial nominees of presidents who had weak public support.

"In the 19th century, the Supreme Court nominations of Tyler and other presidents with a slim hold on popular approval were defeated through inaction," Professor Gerhardt said. "They never reached the floor because it's not clear they would have enjoyed majority support throughout the country."

The rules requiring unanimous consent for all Senate business and a so-called supermajority of two-thirds (since reduced to 60 votes) to end a filibuster are products of Progressive-era reforms. From the 1890's until the 1960's, filibusters were most frequently used by Southern congressmen to defeat civil rights legislation. In 1968, Senate Republicans filibustered President Lyndon B. Johnson's nomination of Abe Fortas to be chief justice of the United States.

"The filibuster wasn't routinely used for judicial nominations until you got into a period of party polarization, where the courts were becoming increasingly important," said Joseph Cooper, a scholar of Congress at Johns Hopkins University. "In the 1970's, you got senators acting more like aggressive, individualistic entrepreneurs, and in the 1980's, there was increased polarization. But it wasn't until the 1990's that this problem of judicial filibusters exploded."

It's a time honored tradition that Democrats have used since they lost power in 1980.

Posted by Orrin Judd at May 23, 2005 3:56 PM