One of the most revered features of the Constitution is the protection it provides to the rights and freedoms of the individual against rampant government power. Our Founding Fathers were ingenious in establishing checks and balances in government, protecting the minority from what James Madison called "the tyranny of the majority." One of the enduring lessons we should have learned over the past 200 years is the danger of casting aside those hurdles to legislative action for the purpose of political expediency.
That is why we are deeply troubled by the talk in the Senate of overriding the rule that requires 60 votes to close off debate. This rule has been a critical protection of the minority against simple majority rule in the Senate. While the two of us often disagree on matters of policy, we share in common a belief in the importance of the filibuster in protecting the rights of the minority.
The so-called "nuclear option," a parliamentary tactic proposed by Senate Majority Leader Bill Frist, would override the 60-vote rule in the Senate to break a filibuster of judicial nominees and allow approval of these judges with 51 votes. While the two of us disagree on the records of the judges we want to see presiding over our courts, we believe it is dangerous to pull an end run around the filibuster. We believe this even though we have both been frustrated at different times by the way the filibuster has been used to block legislation that we favor: During the 1960s filibusters were used to block civil rights bills; more recently they have been used to block some of President Bush's tax and economic policies and some of his judicial nominees.
Senate Republicans, who are in the majority today with 55 votes, seem to forget that throughout the 1950s, '60s and '70s, it was they who were in the minority and who used the filibuster to great effect against a tide of Democratic initiatives. When the political winds shift, Republicans will be back out of power in the Senate and will be reminded of the virtues of the filibuster in protecting their minority positions.
Some critics say that it is illegitimate to use the filibuster against judicial nominees when the Senate is performing its "advise and consent" function. But in the past, filibusters have been used to block judicial appointments. The best-known such occasion was when Republicans teamed up with a handful of Democrats to oppose Justice Abe Fortas, President Lyndon B. Johnson's nominee for chief justice. While some of this president's nominees could face a filibuster, the solution is not to uproot many years of precedent.
What troubles us most is that the "nuclear option" could become a routine tactic for the majority party in the Senate to push legislation through with only a 51-vote requirement for passage. The Senate was always envisioned by the Founders to be the deliberative body in Congress, in which the heated emotions of the moment's debate could cool before new laws or judges were approved. The filibuster and the 60-vote cloture rule are nearly indispensable in facilitating full debate and strong consensus for legislative action.
It is clear to us that it takes a two-thirds majority (67 votes) to change the Senate's standing rules. The filibuster will become effectively emasculated over time if a precedent is set that a simple majority of the Senate can override the 60-vote rule whenever the majority feels frustrated by the actions of 41 senators. As such, this rule change could eventually apply to all legislation and thereby be used as a tool to create a Senate majority with absolute power.
Eviscerating the filibuster would violate the spirit of the Constitution and endanger our rights as individuals against excessive governmental power. We are likely to see great, emotionally charged political fights in the months to come over judicial nominees -- especially Supreme Court appointments. And why not? The stakes are high. The fights should come, and the Senate rules should remain firmly in place to resolve them. That is the way our Founding Fathers would have wanted it.
Wade Henderson is executive director of the Leadership Conference on Civil Rights. Stephen Moore is president of the Free Enterprise Fund.