Filibuster, Constitution,

Judicial Nominations

by Earl Gosnell

Op-ed Columnist David Brooks published a piece: "Stuck in Lincoln's Land" in the May 5, 2005 New York Times whose main lesson was, "those of us trapped wrestling with faith are not without the means to get up and lead." Lincoln, wrestling with faith, led in the abolition of slavery, when "the only truths he could rely upon were those contained in the Declaration of Independence."

That's fine, but the columnist also stated he believes, "the social conservatives' attempt to end the judicial filibuster is one of these cases [where] evangelical causes can overflow the banks defined by our founding documents." I take issue with him here as one of those banks defined by the Declaration of Independence was a list of protests to King George which included: "He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers." It seems to me that obstructing the establishment of judiciary powers—i.e. the appointment of judges—is what our founding document was against.

Now, to find filibuster, we first have to look at the US Constitution. Article 2 of the constitution provides, "The executive Power shall be vested in a President of the United States of America." Section 2 gives him "Power, by and with the Advice and Consent of the Senate [emphasis added], to nominate, and appoint Judges of the supreme Court, and other Officers which shall be established by Law." This "Advice and Consent of the Senate" has given us a long tradition of free debate, as provided for by Rule 22, but a simple 50% majority is all that is required for Consent. A filibuster prolongs the debate so no vote is ever taken.

So where exactly do America's founding documents define filibuster? Let's look at a lexicographer's explanation:


filibuster of old
Organized obstructionist tactics used by a minority to prevent passage of a law by the majority who favor it. ...

The word filibuster comes from the older English word freebooter, for pirate or buccaneer (in Dutch vrijbuiter), which the Spaniards turned into filbustero, which in turn became filibuster. The original filibusters were English and French pirates who operated out to the West Indies during the sixteenth century to prey on Spanish shipping. In the nineteenth century the word was applied to adventurers who, under private auspices, organized themselves into bands in order to invade certain Spanish-American lands and effect revolutions there. Some of these filibustering expeditions came from the United States and were directed against Cuba, Mexico, and other Latin nations, such as William Walker's expedition against Sonora (1853-54); others were directed by rebellious citizens of the countries themselves who were trying to overthrow their government, like that of Narcisco Lopez against Cuba. By the mid-nineteenth century filibuster had also begun to be used in its modern sense of a means of obstructing legislation.

Permit me to speculate some on how such a word came to stand for what we know it as now, using an excerpt from Peter Benchley, The Island2
What had originally appealed ... about the buccaneers ... was that they were survivors—men of mediocre talent and no great aspirations who had hacked a living from a barren wilderness. They had gone on to plague the most powerful nation on earth. ...

They had begun as runaway slaves, abused apprentices, shipwrecked mariners, and escaped convicts, all outcasts—by accident or design—from the civilized world. In the middle of the seventeenth century, they established communities on Hispaniola and Tortuga and lived as hunters. They killed wild cattle and cured and smoked the meat on racks called boucans. They were known as boucaniers, later anglicized into "buccaneers." They bothered no one and, in fact, contributed to the survival of countless ships' companies, for they provided vital supplies—meat, hides, and tallow—in return for cloth, gunpowder, muskets, and liquor. ...

The kings of Spain, however, had decreed that all trade with the New World must be conducted by Spanish ships. Never mind that the fleets from Spain arrived only once or twice a year, and that when they did arrive they carried pitifully few provisions. Never mind that to follow the letter of the law, the colonists must condemn themselves to life without building materials, clothing or food. Technically, the colonists were not allowed to grow agricultural produce, make their own shoes, or trade with anybody for anything.

By existing, therefore, the buccaneers were outlaws subject to frequent assaults by the Spaniards, who slaughtered those they could catch and drove off those they could not. In their perverse wisdom, the Spaniards succeeded in depriving their colonists and mariners of a vital source of supplies, and at the same time, in engendering in the tough, skilled, sea-savvy, and wilderness-wise buccaneers an inveterate hatred of Spain.

Unable to survive as hunters of animals, the buccaneers became predators on Spanish shipping. They sailed small, fast vessels that could outmaneuver the bigger, slower Spanish galleons. Employing stealth more than force, they used weapons designed for speed, ease of access, and close-in efficiency: knives, short-swords, and hand axes that would find the joints of a Spaniard's armor and dismember him while he fumbled to aim his clumsy harquebus.

The buccaneers' reaction to the Spanish decree that "all trade with the New World must be conducted by [undersupplied and irregular] Spanish ships" harks back to the protest against King George for "obstruct[ing] the Administration of Justice, by refusing [to] establish Judiciary Powers." It's understandable how the word filibuster came to apply to a sneaky means to thwart a majority ruling that drives a people to desperation, but our modern use of a filibuster to prevent the establishment of judges seems to fly in the face of the historical derivation of the word.

Let me give you another example of a "pirate," from Robert Ludlum, The Scorpio Illusion:3

Leading the counterstrike, the Baj had trapped the executioners offshore, and like a pirate queen, flanking and outflanking them in a fast boat at night, had forced them into the shoals under floodlights, while continuously firing murderous rounds into the cornered Israelis. She had caught four bullets in her stomach ...

[—her rehabilitation—]

Next came chess. The padrone claimed he was a master; the young mistress beat him twice, then quite obviously let him win the third time. He roared with laughter, knowing what she had done and appreciating her charity.

"You are a lovely woman," he had said, "but never do that again."

"Then I shall beat you every time, and you'll be angry."

"No, my child, I will learn from you. It's the story of my life. I learn from everyone. ... I once wanted to be a big movie star, believing my height and my body and my shining yellow hair would be loved by the camera. Do you know what happened? ... Rossellini saw a test I made for Cinecittà in Rome; guess what he said? ... He said there was an ugliness in my blue eyes, an evil he could not explain. He was right, I went elsewhere."

The establishment learns. They learn from the buccaneers they once fought. They apply techniques to get out of an impossible corner and even call the technique a filibuster after those pirates of old. Then they get ambitious and use the filibuster not to obtain a needed but denied supply, but to obtain the preferred brand which doesn't seem to be forthcoming in a free market economy. There is something obscene about this picture, like the crime boss with the movie star good looks testing for the screen but being betrayed by evil looking eyes.

Rather than evangelicals overstepping some bank of separation of church and state, this recent filibuster is the free debaters overstepping the bank of obstructionism, and David Brooks' May 5, 2005 article calling upon founding documents to preserve the filibuster nothing but bluff.

Let's look at these mechanisms by way of an illustration from Edward Mathis, The Fifth Level:4

Homer Sellers's official title was Captain of Homicide, but he was also in charge of burglary, armed robbery, and just about all of the other assorted offenses of mayhem and general skulduggery the citizens of Midway City, Texas, insisted on occasionally perpetrating against each other. There was one other captain on the Midway City force; he handled traffic, traffic-related crimes, auto theft, and arson.

Homer Sellers was a huge genial bear of a man. Affable, garrulous, he was fully as tall as Warren Stillwell, but with considerably more padding on his enormous frame. He had deceptively gentle blue eyes, slightly myopic behind thick glasses that continually slid forward on his big nose, and a loud booming laugh that he used often, particularly during a poker game. After a lot of fruitless study, a lot more lost money, I had suddenly discovered one fine night that the pitch and timbre of that laugh changed slightly when he was bluffing. From that moment on, he was mine.

He was sitting hunched over his battered desk, leafing slowly through a porno magazine. There was a stack of them on the corner of the desk and he looked up in irritation when I barged in without knocking. The look changed to sour disgust when he saw who it was.

"Come here to gloat, I suppose," he rumbled. Without waiting for me to answer, he pointed with his head toward the magazines on his desk. "Look at this crap. This is what kids are reading today."

"Who're you kidding? These for your collection, or what?" I picked up one of the magazines and flipped through it. Nothing there I hadn't seen——or done. I tossed it back on the stack. "Where'd you get them?"

"Arnico and Collins raided that bookstore over on Tower."

"I thought this stuff was legal. Thought you couldn't touch them."

"Law says they have to be a thousand feet from any public building." He grinned suddenly, showing me an even row of big white teeth. "The corner of their store is nine hundred and ninety-five feet from the city garage. That's a public building."

I laughed. "I'll bet that tickled their funny bone."

"Pissed them off some," he admitted. He put the magazine with the others and leaned back in his squeaking swivel chair. He produced a cigar from his breast pocket and wet the end of it, his blue eyes watching me expressionlessly. He got it drawing good, then blew a puff of smoke in my direction.

"Well, Slick, you here to crow about last night, or what? If I had my sooners, I'd just as soon not seen you for a few days."

"Oh, hell, Homer, it wasn't all that bad. I was just on a roll. We all have nights like that once in a while."

"Uh-huh. Wonder when my time's coming? Seems like here lately every time I run a damn bluff, you ram it up my ass all the way to the third knuckle."

I grinned. "Don't blame me. I offered to give you guys lessons ..."

He slapped his desk, his booming laugh rattling the windows. Sounds genuine as hell, I thought, perfect pitch. "You done that, son, but you didn't tell us it was going to be so expensive."

I laughed with him for a few moments, then I zoomed in on his eyes and got to it.

If you look at that story from the standpoint of the bookstore owner, he would say the "social conservatives' attempt to [censor pornography] was one of these cases [where] evangelical causes can overflow the banks defined [by law]." But that's just bluff. It is the bookstore that overstepped the line by putting itself within a thousand feet of a public building. And yes, they'll be hopping mad, but the law isn't really on their side.


1. Christine Ammer, Fighting Words (New York: Dell Publishing, 1990) pp. 121-2. Back to document back

2. Peter Benchley, The Island (Garden City, NY: Doubleday & Co., 1979) pp. 161-3. Back to document back

3. Robert Ludlum, The Scorpio Illusion (New York: Bantam Books, 1993), pp. 30-31. Back to document back

4. Edward Mathis, The Fifth Level (New York: Charles Scribner's Sons, 1992) pp. 24-26. Back to document back



Earl Gosnell
1950 Franklin Bv., Box 15
Eugene, OR 97403


Copyright © 2005, 2008 Earl S. Gosnell III Creative Commons License
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A paper to define filibuster as applied to the Constitution, and Judicial Nominations.