The Audacity of Hope

seen for a judicial confirmation. When the nomination was defeated, conservatives
realized that they would have to build their own grassroots army.
Since then, each side had claimed incremental advances (Scalia and Thomas for
conservatives, Ginsburg and Breyer for liberals) and setbacks (for conservatives, the
widely perceived drift toward the center by O’Connor, Kennedy, and especially Souter;
for liberals, the packing of lower federal courts with Reagan and Bush I appointees).
Democrats complained loudly when Republicans used control of the Judiciary
Committee to block sixty-one of Clinton’s appointments to appellate and district courts,
and for the brief time that they held the majority, the Democrats tried the same tactics
on George W. Bush’s nominees.
But when the Democrats lost their Senate majority in 2002, they had only one arrow left
in their quiver, a strategy that could be summed up in one word, the battle cry around
which the Democratic faithful now rallied:
Filibuster!
The Constitution makes no mention of the filibuster; it is a Senate rule, one that dates
back to the very first Congress. The basic idea is simple: Because all Senate business is
conducted by unanimous consent, any senator can bring proceedings to a halt by
exercising his right to unlimited debate and refusing to move on to the next order of
business. In other words, he can talk. For as long as he wants. He can talk about the
substance of a pending bill, or about the motion to call the pending bill. He can choose
to read the entire seven-hundred-page defense authorization bill, line by line, into the
record, or relate aspects of the bill to the rise and fall of the Roman Empire, the flight of
the hummingbird, or the Atlanta phone book. So long as he or like-minded colleagues
are willing to stay on the floor and talk, everything else has to wait—which gives each
senator an enormous amount of leverage, and a determined minority effective veto
power over any piece of legislation.
The only way to break a filibuster is for three-fifths of the Senate to invoke something
called cloture—that is, the cessation of debate. Effectively this means that every action
pending before the Senate—every bill, resolution, or nomination—needs the support of
sixty senators rather than a simple majority. A series of complex rules has evolved,
allowing both filibusters and cloture votes to proceed without fanfare: Just the threat of
a filibuster will often be enough to get the majority leader’s attention, and a cloture vote
will then be organized without anybody having to spend their evenings sleeping in
armchairs and cots. But throughout the Senate’s modern history, the filibuster has
remained a preciously guarded prerogative, one of the distinguishing features, it is
said—along with six-year terms and the allocation of two senators to each state,
regardless of population—that separates the Senate from the House and serves as a
firewall against the dangers of majority overreach.
There is another, grimmer history to the filibuster, though, one that carries special
relevance for me. For almost a century, the filibuster was the South’s weapon of choice
in its efforts to protect Jim Crow from federal interference, the legal blockade that
effectively gutted the Fourteenth and Fifteenth Amendments. Decade after decade,
courtly, erudite men like Senator Richard B. Russell of Georgia (after whom the most
elegant suite of Senate offices is named) used the filibuster to choke off any and every