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May 20, 2005

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Kirston Fortune, UT Law Communications, (512) 471.7330,

Mitchell Berman: Democracies young and old need restraint

By Mitchell Berman
Published Friday, May 20, 2005, in the Dallas Morning News.
Reprinted with the author's permission.

Photo of Professor Mitchell Berman
Professor Mitchell Berman
Photo Credit: Rick Patrick

On a surprise trip to Iraq on Sunday, Secretary of State Condoleezza Rice applauded the government of Prime Minister Ibrahim al-Jaafari for its efforts to bring ethnic minorities into the government but lectured the majority Shiites on the need to allow more Sunnis into the constitution-writing process.

Meanwhile, in Washington, Senate Republicans, behind Majority Leader Bill Frist, continue to threaten to force a vote to eliminate Democratic power to filibuster President Bush's nominees for the federal judiciary. One wonders whether Dr. Rice and Dr. Frist talk much.

The Bush administration has consistently insisted that, despite making up 60 percent of the Iraqi population, Shiites cannot secure peaceful rule unless they establish structural mechanisms designed to allow the political minorities effective voice. They're right: For the Shiites to run roughshod over the Sunnis and Kurds is to court anarchy or civil war.

Yet the administration sees no irony in seeking to dismantle the minority's structural protections at home, even protections that have a 217-year tradition. Although Senate Republicans are ostensibly leading the fight, Vice President Dick Cheney has vowed, as president of the Senate, to cast the deciding vote, if necessary, to scuttle the Senate minority's right to filibuster.

To be sure, the analogy is imperfect. The United States is not Iraq. No pursuit of partisan advantage, no matter how single-minded, will threaten internecine warfare. But if the dangers Americans face are less grave, surely our ambitions are correspondingly more grand. It is folly to believe that we can maintain greatness if our leaders routinely pursue bare partisan advantage over national unity.

As a presidential candidate, George W. Bush claimed to know this, running on the promise to heal rather than exacerbate partisan tensions. In fact, as Texas governor, Mr. Bush had worked well with Democrats.

From the start of his first term as president, however, he has been a divider, not a uniter. And the Republican Party's present threat to ram judicial nominees through the Senate by eliminating the filibuster is just par for this course.

One year ago, the Supreme Court decided a case of gerrymandering arising from Pennsylvania, where the Republican-dominated legislature had tortured state electoral districts to wring out every possible partisan advantage. Four justices insisted that the courts should refuse to adjudicate claims of partisan gerrymandering, no matter how badly the state legislature may have behaved, for want of judicially manageable standards.

With this four, Justice Anthony Kennedy, a Reagan appointee, could articulate no judicially administrable test and accordingly agreed to dismiss the challenge. In doing so, however, he wisely observed, "The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself."

In Pennsylvania, he lamented, "Legislative restraint was abandoned."

What was true in Pennsylvania is too true of the national GOP as well. It has lost its sense of self-restraint. Iraqi Shiites are struggling to develop restraint of their own. It is too early to know whether that spirit of moderation will prevail or whether, instead, Iraq will continue down the road to civil war.

Although the United States is not faced with civil war, the pathological state of our political discourse suggests that our future, like the Iraqis', largely depends upon the moderates within the political majority. It is time for ordinary Republicans of good will and far-sightedness to call a halt to the excesses engineered by their party's right wing.

They can start by recognizing that a party that controls the presidency, both houses of Congress, a majority of state governorships, a plurality of state legislatures, a majority of the Supreme Court and 10 of the 13 federal courts of appeals has no need to solidify a stranglehold on government by pushing the judiciary even further right.

The battle over the filibuster is not, at bottom, about the filibuster at all. It's about whether a politically dominant party can curb its appetite for the nation's good.

Mitchell Berman teaches constitutional law at the University of Texas at Austin. His e-mail address is

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