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For Byrd, It’s Time to Retire

To paraphrase Oliver Cromwell’s sermonizing to the British Long Parliament, Sen. Robert Byrd (D-W.Va.) has sat too long for all the good he has been doing lately. The octogenarian should retire. He has become a caricature of Cicero.

Declaiming on March 1, 2005, in praise of unlimited Senate debate to scuttle judicial nominations, Sen. Byrd’s misstatements or exaggerations mounted taller than the Washington Monument.

The Founding Fathers frowned on minority power to arrest decisive majority will, through filibusters or otherwise. The Senate was framed on that understanding to escape the paralysis of the Polish diet.

In ardently praising minorities, Sen. Byrd bemoaned that “Jesus Christ was killed by a majority.” But minority power was regularly abused in the United States to enshrine and preserve Jim Crow.

Bryon de la Beckwith, the killer of civil rights icon Medgar Evers, twice eluded punishment in 1964 when all-white juries deadlocked. A federal anti-lynching law to punish white vigilante justice was thwarted by a white racist minority. Sen. Byrd himself, along with Sen. Strom Thurmond of South Carolina, earned notoriety for their prolonged filibustering of the 1964 Civil Rights Act. Mormon-dominated Utah was denied statehood for more than 50 years because of religious bigotry in Congress.

According to Sen. Byrd, “Nowhere else [than the U.S. Senate] can any political, social, or religious group, finding itself under sustained attack, receive a better refuge.” That is startling news to the countless professionals whose lives were destroyed by the anti-Communist witch hunts of Sen. Joseph McCarthy (R- Wis.). The Senate belatedly voted “condemnation” of McCarthy in 1954 for obstructing and deriding Senate proceedings and fellow Senators. But not a syllable of repentance was uttered for the private victims of the Wisconsin Senator’s wild accusations and defamatory insinuations.

Sen. Byrd has errantly insisted that, “Without the threat of filibuster or the threat of extended debate … [t]he president can simply rule. The president of the United States can simply rule by executive order, if his party controls both houses of Congress and majority rule reigns supreme. In such a world, the minority will be crushed …”

The United States Constitution, however, features a separation of powers, including judicial review, rather than parliamentary supremacy. Federal courts regularly enforce the Bill of Rights against political majorities. Congress is not simply a stenographer for the executive branch, as President Bush knows from trying to implement his Social Security initiative. Democratic President Franklin Delano Roosevelt presided over a Democratic-controlled Congress from 1933 to 1945 without crushing the opposition. Indeed, in 1946 Republicans captured control of the Senate.

Sen. Byrd stumbled again by equating filibusters against legislation with filibusters against judicial nominations. The former affects a power expressly entrusted to Congress under Article I of the Constitution. Legislative filibusters do not encroach on the powers of a co-equal branch. Judicial filibusters, in contrast, invade the president’s power to appoint with a simple Senate majority under Article II. They violate the Constitution’s separation of powers by shrinking the universe of candidates available to the president and capable of confirmation. That explains why the Senate has generally desisted from filibustering judicial nominations. Even Supreme Court nominee Robert Bork received a floor vote.

His hyperbole regularly streaks through the stratosphere. The Senator likened an ending of judicial filibusters to the lawlessness of “Nazi Germany” or “Mussolini’s Italy.” He maintained that the power of a single Senator to thwart a majority by delay is the alpha and omega of free speech, and that the end of filibustering would mark a permanent dulling of dissenting voices, despite the absolute constitutional protection of Congressional “speech or debate” in Article I, section 6.

The Senate is intended for reasoned discourse. Sen. Byrd no longer satisfies that criterion.

Bruce Fein, former deputy associate attorney general in the Reagan administration, is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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