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'Nuking' Free Speech

By Robert Byrd
Friday, March 4, 2005; Page A21

A "nuclear option" is targeting the Senate. No, this isn't some terrorist plot. Rather, some in the Senate are considering dropping a legislative bomb that threatens the rights to dissent, to unlimited debate and to freedom of speech.

President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year. To force a vote on these nominees, some senators are hoping to launch a parliamentary weapon aimed at the heart of open and extended debate. By a simple majority vote, a Senate filibuster on judicial appointments would be "nuked" for all time.

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It starts with shutting off debate on judges, but it won't end there. This nuclear option could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy. It could destroy the Senate's very essence -- the constitutional privilege of free speech and debate.

To understand the danger, one needs to understand the Senate. The Framers created an institution designed not for speed or efficiency but as a place where mature wisdom would reside. They intended the Senate to be the stabilizer, the fence, the check on attempts at tyranny. To carry out that role, an individual senator has the right to speak, perhaps without limit, in order to expose an issue or draw attention to new or differing viewpoints. But this legislative nuclear option would mute dissent and gag opposition voices.

We have heard the president call for an up-or-down vote on his judicial nominees. But nowhere in the Constitution is an up-or-down vote -- or even a vote at all -- guaranteed, and the president cannot reinterpret our nation's founding document to achieve his political goals. Those who disagree with the president in this matter will be labeled "obstructionists," but nothing could be further from the truth.

A federal judge is selected for a lifetime appointment. Senators must apply their best judgment to each selection. If a senator believes a nominee should not be confirmed, that senator has a duty not to consent to confirmation. Yet, for the temporary goal of confirming a handful of objectionable judicial nominees, those pushing the nuclear option would callously trample on freedom of speech and debate.

If senators are denied their right to free speech on judicial nominations, an attack on extended debate on all other matters cannot be far behind. This would mean no leverage for the minority to effect compromise, and no bargaining power for individual senators as they strive to represent the people of their states.

Yes, Americans believe in majority rule, but we also believe in minority rights. Our liberties can be truly secure only in a forum of open debate where minority views can be freely discussed. Leave it to the House to be the majoritarian body. Let the Senate continue to be the one in which a minority can have the freedom to protect a majority from its own folly.

The writer is a Democratic senator from West Virginia and former majority leader.


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