Since reaching the so-called bipartisan compromise on judicial nominees -- in which Democrats were sold the idea of laying down their arms, i.e., the filibuster -- the Senate has confirmed six of the Bush administration's most conservative judges, including the most extremist: Priscilla Owen, Janice Rogers Brown and William Pryor. On Thursday the Senate Judiciary Committee approved its latest proposed lifetime appointee to America's second-highest court: U.S. District Judge Terrence Boyle, a Jesse Helms protege and a candidate for extended floor debate if ever there was one. As we ponder whether Senate Democratic leaders and their satellites in the lobby still have the stomach for a fight, let's further contemplate the legislative weapon called the filibuster.
In waging war against Senate Republican leader Bill Frist's "nuclear option" for changing the Senate's rules, several civil rights lobbyists have hailed the filibuster as essential to the system of checks and balances and a promoter of cooperation and compromise. That hallowed view of the filibuster is not reflected in the annals of civil rights history. In fact, once upon a time the aim was to kill it.
In 1948 America's foremost civil rights organization, the NAACP, joined by stalwart liberal senators Hubert H. Humphrey of Minnesota and Paul Douglas of Illinois, led the charge to reform cloture Rule XXII, which required a vote by two-thirds of the Senate to stop a filibuster. For decades, the filibuster, used by southern Democrats, was a death sentence for civil rights bills.
Back then the NAACP's official demand was simple and direct: The Senate should be able to invoke cloture or cut off a filibuster by a simple majority. That legislative reform effort was defeated in 1949 by senators led by those from Dixie. The defeat ended all chances of passing President Harry Truman's civil rights bills -- the NAACP's No. 1 legislative objective -- which included enactment of a fair employment practices law and anti-lynching and anti-poll-tax legislation.
Efforts to weaken the filibuster were renewed in 1952. At that time William Welsh was a junior legislative assistant staffing the offices of Sen. Herbert H. Lehman of New York. In an e-mail on Tuesday, Welsh told me that over the holidays in December 1952, Clarence Mitchell, the NAACP's Washington lobbyist, and Joe Rauh, a founder of Americans for Democratic Action and a top Washington lawyer, visited Lehman's office "with a proposal that Senate Rule XXII be challenged at the opening of the new Congress, which would convene in January 1953. They wanted Sen. Lehman to ask for a ruling from the presiding officer as to whether or not the Senate was a 'continuing body' where the rules carried over automatically from Congress to Congress, unlike the rules of the House."
Welsh said: "Joe had prepared an elaborate brief arguing that at the opening of each new Congress a majority of the senators could adopt new rules, thus permitting a challenge by majority vote to Rule XXII, the filibuster rule. Only two other senators, Paul Douglas and Wayne Morse, joined with Lehman in supporting that challenge. Thus the long fight to change the filibuster rule began. From that year on at the opening of every new Congress until 1969 an attempt was made, supported by Joe, Clarence and the Leadership Conference on Civil Rights, to undo the filibuster rule. Finally, in January 1969, in one of his last actions as vice president, Hubert Humphrey ruled that the filibuster rule requiring a two-thirds vote to cut off debate on rule changes was unconstitutional. This ruling was challenged by Majority Leader [Mike] Mansfield and the ruling was not sustained.
"Having worked with Joe, Clarence, and their colleagues on these efforts and many civil rights bills as a staff member for Senator Lehman, Senator Phil Hart and Vice President Humphrey, I am not at all sure how Joe and Clarence would view the present effort to retain the two-thirds filibuster rule. My guess is that they would understand that in the long view of history, the U.S. Senate would be a more responsible and accountable legislative body if both judicial confirmations and legislation could be passed by a majority vote and that debate on these issues [be] cut-off by a constitutional majority (51) votes of the senators."
I cannot attest to that. This I do know, however: The filibuster was not regarded as a protector of bedrock values back in the day when lynching, Jim Crow and racial injustices were protected by the U.S. Senate.
Ah, but that was then and this is now: a Senate majority that cannot be counted on to ensure the appointment of a fair federal judiciary that is supportive of laws protecting the rights of Americans. Hence, with this current situation comes a strategy designed to address the needs of the day: the filibuster.
Is that wrong? When the filibuster is all that stands between the federal bench and judicial advocates of 19th-century federalism, I say no. Besides, the context in which the filibuster is now being deployed is also different. Segregationists used the filibuster to defeat laws "on which the rights of millions of people of color depend," as Rep. Melvin L. Watt (D-N.C.), chairman of the Congressional Black Caucus, put it the other day. Today it is being used to protect those same rights against foes of judicial enforcement.
But let's get real: There is nothing sacred about the filibuster. It has been used in the past for ill. Now it defends the good. It is a legislative device used to achieve victory or at least stave off defeat -- no more, no less. Besides, the filibuster debate masks a larger challenge. The fact that the filibuster is now used to protect mainstream American jurisprudence from assault only goes to show how much ground has been lost since Mitchell, Rauh and a bloc of liberal senators defended the Supreme Court from attack in the '50s. The political pendulum has indeed swung; the filibuster is no permanent bulwark against that.
Supporters of an independent judiciary and civil rights laws must broaden their focus beyond the White House. Congress, as in the days of Mitchell and Rauh, is also the battlefield. Yes, watch who's on the road to the presidency. But also keep the spotlight on House and Senate races. There's no better place to start than in the states of that "bipartisan" group of senators who capitulated on May 23, and in the states of those Republican and Democratic leaders who cheered them on. Washington lobbyists, proud to be seated near the table where senators know them by name, may quake at the thought. But the rights of millions depend on a strong political response -- without regard to party.
Thanks to Post Readers
A year and a half ago I wrote about Craiyana Henderson, then an 18-year-old woman who was shot and paralyzed from the waist down while trying to shield her young cousins from gunshots fired from a car ["Who Has an Answer for Craiyana?" op-ed, Jan. 17, 2004]. The column detailed her difficulties trying to manage home and school in a self-propelled wheelchair.
Reader response was overwhelming. Through hundreds of donations, Craiyana was able to purchase an electric wheelchair, a specially equipped car for a person with a disability, and most of all -- with your encouragement and assistance to get to and from daily classes -- she graduated on June 10, earning her high school diploma from a D.C. school program called Ballou STAY (School to Aid Youth). Next month she's off to vocational training and hopefully a job path that will allow her to become self-supporting, said Mary Edsall, a guardian angel if ever there was one.