December 2009

Paul M. Smith, a longtime Supreme Court litigator and counsel for the plaintiffs in the landmark Supreme Court case, Lawrence v. Texas, recently talked with the American Constitution Society of Yale Law School about LGBT equal rights advancements, and setbacks. Smith, partner at Jenner & Block LLP and former chair of the ACS Board of Directors, told the Yale Law School chapter that the advancement for equality has been decidedly mixed, but there remained ample room for optimism.

He noted the referenda setbacks in California and Maine, but added, "We have marriage equality in five states, and the flood tide is still running very strongly in the direction of equality. "

"And so I'm very optimistic," Smith continued, "that in the next few years we will continue to make tremendous strides."

Smith also said that advocates for equality should push lawmakers to advance equal rights. "If anything," Smith added, "pressure should be ratcheted up. It [reform] needs to happen." See video of Smith's entire interview here or download it here. The interview followed a recent ACS Yale Law School chapter event, featuring Smith. 

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By Derek M. Duarte. Mr. Duarte is a practicing attorney at the McNamara Law Firm in California. He also serves on the advisory board for the New Leaders Council, a training program for future progressive leaders.

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As Americans, we often revel in the strengths and virtues of our democratic system. True, we often revile the politicians, their many antics, and the political penumbra that surrounds our nation's capitol, but we take great pride in our democratic system and its carefully constructed balance of power created by the foresight of our founding fathers. We've often called our democracy our greatest export. We've fought wars to bring it to other countries. We believe it is the highest state of enlightened political evolution.

And to a certain extent we are correct. But our pride makes us believe our democracy is some indestructible concept that will continue to function for all eternity by virtue of its initial ingenuity. Unfortunately, we fail to recognize one critical ingredient that has been a constant necessity for the continuity of our democratic system: Respect. Respect for our democracy. The history of our Constitution is a cornucopia of political conflict incensed by deeply emotional commitment to juxtaposed moral values - slavery, civil rights, and abortion, just to name a few. Nevertheless, our democracy endured these nation-splitting conflicts because the players involved knew that the foundations of our democracy were not in the words of our laws, but in the actions of those in power. They knew that blind adherence to procedural rules in the unrelenting pursuit of political victory must give way at some point to the recognition that an unyielding pursuit of power will ultimately disturb the delicate balance at the center of our democracy.

The respect for that imperative delicate balance of power has been significantly eroded by the overuse of the procedural filibuster by the Republican minority. The Senate was formed as a compromise between large populous states, and the smaller states in the union. The intention was smaller states would be given equal power in the Senate by virtue of the fact that every state had two representatives, regardless of population. Consequently, while more populous states would be able to force legislation through the House due to their population advantage, they would have to garner the cooperation of the smaller states to achieve passage of legislation in the Senate by a simple majority. The flagrant use of the filibuster significantly alters this dynamic. Now, instead of having to achieve a simple majority vote, Senators are forced to achieve a three-fifths majority (60 votes) to pass any legislation that the minority is vehemently opposed to. Requiring a three-fifths majority on landmark legislation is arguably an acceptable threshold, but requiring it for numerous Senate actions is another matter entirely. The Republicans have used the filibuster over a 100 times this year, meaning that the Republicans have taken a procedural tool and used it an exorbitant amount of times to frustrate the original intended structure of the Senate, which was to pass legislation with a simple majority.

The abuse of the filibuster reflects a dangerous trend growing in American politics, the entrance of a zero-sum game mentality into our partisan political system. Before, flagrant procedural abuse of this nature was far rarer due to the simple pragmatic reality that it was not wise to take a no-holds-barred approach to advancing one legislative issue because your opponent on this issue may be your ally on another. This dynamic is fast disappearing from American politics. Instead, we now have the zero-sum game mentality. There is Us, and there is Them. And a win for Them, is a loss for Us. This mentality is what allows the current Senate minority to advance its political agenda as if they were engaged in a procedural extreme fighting bout without regard to the future alliances they may be threatening. They no longer see any future alliances with Democrats, just more zero-sum battles, allowing them to ignore the intent and spirit of the Constitution in exchange for a Pyrrhic legislative victory that erodes the essential foundations of our democracy.

[image via Grundlepuck]