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Southern Republicans to rise on the Senate floor and somberly intone about the
impropriety of filibusters, without even a peep of acknowledgment that it was
the politicians from their states-their direct political forebears-who had
perfected the art for a malicious cause.
Not many of my fellow Democrats appreciated the irony. As the judicial
confirmation process began heating up, I had a conversation with a friend in
which I admitted concern with some of the strategies we were using to
discredit and block nominees. I had no doubt of the damage that some of BushÆs
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judicial nominees might do; I would support the filibuster of some of these
judges, if only to signal to the White House the need to moderate its next
selections. But elections ultimately meant something, I told my friend.
Instead of relying on Senate procedures, there was one way to ensure that
judges on the bench reflected our values, and that was to win at the polls.
My friend shook her head vehemently. ôDo you really think that if the
situations were reversed, Republicans would have any qualms about using the
filibuster?ö she asked.
I didnÆt. And yet I doubted that our use of the filibuster would dispel the
image of Democrats always being on the defensive-a perception that we used the
courts and lawyers and procedural tricks to avoid having to win over popular
opinion. The perception wasnÆt entirely fair: Republicans no less than
Democrats often asked the courts to overturn democratic decisions (like
campaign finance laws) that they didnÆt like. Still, I wondered if, in our
reliance on the courts to vindicate not only our rights but also our values,
progressives had lost too much faith in democracy.
Just as conservatives appeared to have lost any sense that democracy must be
more than what the majority insists upon. I thought back to an afternoon
several years earlier, when as a member of the Illinois legislature I had
argued for an amendment to include a motherÆs health exception in a Republican
bill to ban partial-birth abortion. The amendment failed on a party line vote,
and afterward, I stepped out into the hallway with one of my Republican
colleagues. Without the amendment, I said, the law would be struck down by the
courts as unconstitutional. He turned to me and said it didnÆt matter what
amendment was attached-judges would do whatever they wanted to do anyway.
ôItÆs all politics,ö he had said, turning to leave. ôAnd right now weÆve got
the votes.ö
DO ANY OF these fights matter? For many of us, arguments over Senate
procedure, separation of powers, judicial nominations, and rules of
constitutional interpretation seem pretty esoteric, distant from our everyday
concerns-just one more example of partisan jousting.
In fact, they do matter. Not only because the procedural rules of our
government help define the results-on everything from whether the government
can regulate polluters to whether government can tap your phone-but because
they define our democracy just as much as elections do. Our system of
self-governance is an intricate affair; it is through that system, and by
respecting that system, that we give shape to our values and shared
commitments.
Of course, IÆm biased. For ten years before coming to Washington, I taught
constitutional law at the University of Chicago. I loved the law school
classroom: the stripped-down nature of it, the high-wire act of standing in
front of a room at the beginning of each class with just blackboard and chalk,
the students taking measure of me, some intent or apprehensive, others
demonstrative in their boredom, the tension broken by my first
question-ôWhatÆs this case about?ö-and the hands tentatively rising, the
initial responses and me pushing back against whatever arguments surfaced,
until slowly the bare words were peeled back and what had appeared dry and
lifeless just a few minutes before suddenly came alive, and my studentsÆ eyes
stirred, the text becoming for them a part not just of the past but of their
present and their future.
Sometimes I imagined my work to be not so different from the work of the
theology professors who taught across campus-for, as I suspect was true for
those teaching Scripture, I found that my students often felt they knew the
Constitution without having really read it. They were accustomed to plucking
out phrases that theyÆd heard and using them to bolster their immediate
arguments, or ignoring passages that seemed to contradict their views.
But what I appreciated most about teaching constitutional law, what I wanted
my students to appreciate, was just how accessible the relevant documents
remain after two centuries. My students may have used me as a guide, but they
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