There is a parliamentary counterpart of "block" in consensus decision-making:
***** CounterPunch, November 26, 2002 A Good Tool for the Good Fight In Defense of the Filibuster by JOANNE MARINER ...History of the Filibuster
The filibuster has a long history in the Senate, not all of it honorable. During the nineteenth century, after the abolition in 1806 of a procedure known as the previous question motion, a single obstinate senator could hold up legislation endlessly by filibustering.
It was only in 1917 that the Senate adopted Rule 22, establishing a procedure by which a supermajority could invoke cloture and end a filibuster. As currently written, the rule requires that sixty senators vote in favor of cloture for the vote to succeed.
Given the difficulty of distinguished extended debate on bills from real filibusters, it is not known exactly how many times the filibuster has been used. It is undisputed, however, that the use of the filibuster increased dramatically in the second half of the twentieth century, as did reliance on cloture votes to end filibusters.
According to a 1995 survey published in the Brookings Review, there was an average of one filibuster per Congress in the 1950s, eleven per Congress in the 1970s, and nineteen per Congress in the 1980s. The 1991-92 Congress, the last one counted in the survey, saw a total of thirty-five filibusters. But frequency is only one measure of the filibuster's use; equally significant is the purposes for which it has been employed. In the 1950s, during the country's long and arduous effort to enact legal protections for civil rights, the filibuster was the nearly exclusive purview of Southerners seeking to block such legislation.
In recent decades, in contrast, the filibuster has proved to be a versatile tool, used in a many different circumstances. Most notably, for present purposes, it has been employed by Republicans and Democrats alike in efforts to block the confirmation of judicial and executive branch appointees. Although no judicial nominee for a lower court appointment has ever been rejected due to a filibuster, the mere threat of filibustering may have moderated the appointments process by encouraging the nomination of less extreme candidates.
At the Supreme Court level, a few prominent filibusters have failed, but one was successful. Abe Fortas, nominated by President Lyndon Johnson to head the Supreme Court, was defeated by a Republican filibuster in 1968 because of his activist stand on civil rights issues. After his supporters failed to win a cloture vote, Fortas's nomination was withdrawn.
The Necessary and Legitimate Filibuster
Currently, there are almost eighty vacancies within the federal judiciary, and another twenty or so will probably open up over the course of the coming year. Perhaps more significantly, both Chief Justice William H. Rehnquist and Associate Justice Sandra Day O'Connor are expected to retire in the near future.
With forty-nine Democrats in next year's Senate, the votes exist, in theory, to win a cloture vote on a filibuster, and thus to block a judicial nominee. But whether the option is possible in purely practical terms--it obviously is--does not settle the question of whether it is a legitimate method of handling an objectionable nominee.
The use of the filibuster is undemocratic, and unquestionably so, to the extent that democracy is equated with simple majority rule. But if democracy is seen as a more complex process in which minorities, too, deserve a voice--and which even recognizes that public officials who belong to a political minority may nonetheless represent majority views on certain issues--then filibusters may have a legitimate role to play.
Because of its potent nature, the filibuster is a means not simply of counting heads, but of assessing the intensity of views on a given subject. Simply put, the use of the filibuster raises the stakes in a debate, signaling to the public that an issue, or a nominee, is worth getting exercised over.
An obstructive filibuster, unsupported by popular opinion, is obviously a dangerous game. Were the Democratic minority to start cavalierly holding up Republican legislation and blocking Bush administration nominees who do not fall into the extremist category, it would likely pay a heavy price in the next elections.
Because the potential costs of an incautious filibuster are so obvious, the Democrats have opted not to filibuster even in situations where the temptation to employ the tactic must have been strong. (To cite a recent example: there was no filibuster during the battle to confirm Attorney General John Ashcroft, an extremist by any measure, although if the anti-Ashcroft contingent had held together, the appointment could have been blocked.)
But an extremist judge, even more so than an extremist attorney general, merits a defensive filibuster. Unlike members of the executive branch, who leave office with the President who nominated them, if not before, members of the federal judiciary are there for life. Indeed, through the jurisprudential doctrine of stare decisis, a judge or justice's repugnant views may far outlast his or her own tenure in the judiciary.
If the ugly legacy of the most objectionable rulings of the 1940s Supreme Court is not enough to remind Democratic Senators of the need to act as a moderating force against far right judicial nominees, they should consider the many fundamental issues with which the courts are currently grappling: racial discrimination, abortion, the line between security and privacy in the fight against terrorism, the death penalty, and environmental regulation, among others.
No More Scalias
To mount a filibuster, in the face of a likely cloture vote by the opposing side, is a daunting task. Even with extremist nominees, moreover, such an effort may not succeed. Indeed, the last time that a filibuster over a Supreme Court nomination was terminated with a cloture vote was in 1971, when William H. Rehnquist was named as associate justice to the Court.
The Senate may not be able to block every far right extremist that President Bush tries to appoint to the judiciary. But if another Rehnquist is to join his brethren on the Supreme Court--or another Scalia, or another Thomas--the Senate's moderate members should at least put up a good fight.
Joanne Mariner is a human rights lawyer. She lives in New York.
<http://www.counterpunch.org/mariner1126.html> *****
***** New York Times May 27, 2003 For Partisan Gain, Republicans Decide Rules Were Meant to Be Broken By ADAM COHEN
...In the judicial battles in the Senate, Republican leaders, frustrated that Democrats have rejected a handful of Bush nominees, have declared war on longstanding Senate rules. Orrin Hatch, chairman of the Judiciary Committee, has dispensed with procedures that allow senators to exercise their constitutional "advice and consent" function, in one case holding a single hearing for three controversial nominees, and he has stifled legitimate inquiry. When Senator Charles Schumer tried to ask one nominee about his legal beliefs, Senator Hatch snapped that he was asking "stupid questions."
The Senate majority leader, Bill Frist, has declared that filibusters, which allow senators to block action with just 41 votes, should not be used to reject judicial nominations, despite a history of using them to do just that. Abe Fortas was prevented from becoming chief justice in 1968 by a Republican-backed filibuster. While Senator Frist pushes "filibuster reform," Senate Republicans are also talking about a "nuclear option," in which Vice President Dick Cheney would preside over the Senate and hand down a ruling that Rule 22, which permits filibusters, does not apply to judicial nominations.
The Republicans' attack on the rules come at a time when they could easily afford to take a higher road. They have, by virtue of their control of the White House and Congress, extraordinary power to enact laws and shape the national agenda. And this administration is already getting far more of its judges confirmed, and more quickly, than the Clinton administration did....
<http://www.nytimes.com/2003/05/27/opinion/27TUE4.html> *****
What's democratic and undemocratic can't be decided upon by looking at procedures of decision-making in separation from contexts and contents of decisions. Blocks and filibusters can be democratic and progressive. -- Yoshie
* Calendars of Events in Columbus: <http://www.osu.edu/students/sif/calendar.html>, <http://www.freepress.org/calendar.php>, & <http://www.cpanews.org/> * Student International Forum: <http://www.osu.edu/students/sif/> * Committee for Justice in Palestine: <http://www.osudivest.org/> * Al-Awda-Ohio: <http://groups.yahoo.com/group/Al-Awda-Ohio> * Solidarity: <http://solidarity.igc.org/>