honoring the minority, but only so far

Todd Zywicki, [ Volokh Conspiracy, April 25, 2005] talks about the privilege and responsibility balance that is currently at issue.

In fact, the majority needed to invoke cloture has fallen over time (summarized here). Looking at the history, it appears that the rationale for changing the filibuster rules over time has been to balance the rights of the majority to act versus the rights of the minority to state their case. Thus, where the filibuster has been abused by a minority to kill legislation, as opposed to merely slowing it and ensuring full deliberation, the Senate has moved over time to reduce minority abuse of the filibuster while preserving full deliberation. In light of this history, given the apparent absence of any further debate on some of the judicial nominees, it seems plain that the use of the filibuster against Justice Owen (most notably) is quite clearly an abuse of the power. As a result, if the minority fails to end its abuse voluntariy, the Senate majority would be well within its rights to adopt rules that eliminate abuse of the filibuster power, just as it always has in the past.

The key here is “abused by a minority to kill legislation, as opposed to merely slowing it and ensuring full deliberation”. The minority is not only abusing its prerogative in the matters of consideration, it is also harming debate by peppering its arguments with allegations and accusations with “extreme” and “tyranny of the majority.” It brings to question what kind of behavior would be reserved for real extremist nominees or a majority that did act tyrannical.

Civility, intellectual integrity, and an approach of education rather than confrontation are critical concepts in effective self governance.

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