Guest writer

Unlocking gridlock

Filibuster reform key to problem

— “The Senate is broken.”

This is a line that is heard far too often from regular citizens, and even from U.S. senators. I am quite sympathetic to the sentiment.

In the last Congress, the Senate passed only 2.8 percent of bills introduced-an historic low for what is supposed to be a deliberative body of elected representatives. Today, instead of deliberation, the Senate has turned to obstruction and roadblocks.

Consider our nation’s judiciary. At present, there is a critical shortage of judges. This has sparked a dramatic rise in the number of “judicial emergencies”-federal judicial districts where there are not enough judges to keep up with the caseload. The court delays caused by these emergencies deprive citizens of their legal rights since justice delayed is justice denied.

According to a recent report by the Alliance for Justice, since January of2009, “the number of vacancies [on the federal bench] has risen over 50 percent, to 83 seats, 34 of which are judicial emergencies. This trend stands in stark contrast to President Clinton and President Bush’s first four years, when vacancies declined by 65 percent and 34 percent, respectively. Today, nearly one out of 11 federal judgeships is vacant.”

In Arkansas, for example, the past four judicial nominees have faced confirmation waits between 150 and more than 300 days: D. Price Marshall (151), Paul K. Holmes (309), Susan O. Hickey (187), and Kristine Baker (185). The last three were in districts that were declared judicial emergencies.

These four nominees were neither unqualified nor controversial. Instead, the main culprit was the Senate’s filibuster rule, which is abused by a sometimes invisible and small minority of senators to block debate on judicial and Cabinet confirmations and on legislation.

The only way to end a filibuster is by invoking “cloture.” This requires not just a majority vote, but a 60-vote super majority of the senators, a number that is extremely difficult to reach in this era of partisan politics.

Since 2007, an estimated 391 filibusters have forced cloture votes. Between 1919 and 1970, a period 10 times as long, there were only 49 cloture votes. This shows how much more common problematic filibusters are today.

The modern overuse of the filibuster has nearly ground the Senate to a halt. The chamber spends so much time dealing with obstruction that it has little time left over to actually debate legislative issues or move forward on qualified judicial nominees.

Currently, the Senate is considering reforms to limit abuse of the filibuster, and I encourage the support of both of our senators.

Among these important proposals is a plan to streamline the judicial confirmation process. The change would shorten from 30 hours down to two hours the amount of post-cloture debate mandated for each judicial candidate (except for Supreme Court nominees). This would ensure that qualified and uncontroversial nominees no longer face needless delays, and thus would reduce the number of judicial vacancies that are causing emergencies in our courts.

Another reform under consideration is that senators be required to actually speak on the floor of the Senate while stalling progress by filibuster. This change would greatly increase the likelihood that proposed new laws and judicial nominations receive the debate they deserve.

We cannot continue to let reckless use of the filibuster obstruct the Senate from doing the people’s work. While I support eliminating the filibuster entirely, it is critical to note that the proposed reforms would not, in fact, go that far. Nor would they destroy the minority party’s ability to engage in principled objection to legislation and nominees they oppose.

What the reforms would do is encourage actual debate while cutting down on needless obstruction.

Our Founding Fathers sought to prevent the tyranny of the majority by putting structures in the Constitution that limit majority rule. They divided governmental power among the executive, the legislature, and the judiciary. They split the legislative branch into the House of Representatives and the Senate. They allocated governmental authority to both the federal government and the states. And they set forth a list of individual rights that bind and limit all branches of government.

The Founding Fathers believed that these protections were sufficient to avoid majority tyranny. They were right. The filibuster, in its current form, is unnecessary. Rather than protecting minority and individual rights, it is undermining our representative democracy.

The sensible proposals to limit-but not eliminate-the filibuster circulating in Washington are balanced, reasonable and desperately needed. I strongly encourage Sens. Mark Pryor and John Boozman to support these important reforms to the procedures of the United States Senate.

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Joshua M. Silverstein is a law professor at the University of Arkansas at Little Rock’s William H. Bowen School of Law.

Editorial, Pages 17 on 01/18/2013

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