Wednesday, May 25, 2005

 
Thoughts on the Fillibuster Compromise

I have to agree with Hugh Hewitt:
I think it is far more accurate to say GOP activists --of all ideological stripes, including big-tent, Arlen Specter-supporting, party-first folks like me-- are furious because they know what the "deal" does to the NRSC and the effort to build a lasting majority. You can stray on Social Security and private accounts and be a good Republican. You can vote to keep ANWR closed and be a good Republican. You may favor abortion rights or same sex marriage rights (though not their imposition via court diktat), and you can even vote against any particular judicial nominee on sincere grounds, and be a good Republican.

But you can't sell out the Constitution. And you shouldn't sell out good people unfairly slimed by extremists of the left. The gang of seven did both. That's why folks are furious. It is wrong to characterize that as an ideological reaction. It is a principled reaction to an unprincipled maneuver.

And I think Penraker summed it up well too:
They all sound like statesmen this morning. But they are a Neville Chamberlain - kind of statesmen. They are putting off the squaring of accounts to a later date, holding up a piece of worthless paper, and hoping the trouble will go away. It won't.

I think it is fascinating what the Democrats have done. Using fillibusters and declaring originalists are "radicals" takes guts. And it relies on lack of historical knowledge. Pushing back against radical measures (the fillibuster) was declared radical. I have to hand it to them.

Those 7 Republican Senators put the health of the Republic and the Constitution behind the ability to back-slap other Senators.

I would also add that we should worry about those who can be convinced that a novel four-year-old procedure is an ancient Senate tradition. By 2006, they will have forgotten about all this, nor would they probably care.

Comments:
novel four year procedure?

I presume you meant judicial filibusters by this. So not only are you going to ignore other procedural tactics that were used by opponents of Clinton's nominees and in the past, but you're going to even ignore the use of the filibuster against nominees as far back as Lyndon Johnson's nominee for Chief Justice in 1968?

I'm not a wholehearted supporter of the filibuster--I think it's antidemocratic--and am glad that it's been whittled down over the years from something that 1 senator can do to something that 1/3 of the senate can do to now something that 40% of the senate can do (and it might be best, as many of you are arguing now, if it gets whittled down over time further--with the provison that a host of other reforms to promote more democratic accountability occur also).

However, judicial filibusters are one of many, many obstructionist procedural tactics that many, many people from different political parties and interests have used over the years. In this sense, it's not a novel tactic, and furthermore has little to do with the Constitution (if anything, I'm guessing many of "the Framers" probably would have supported how this forces extended debate and compromise rather than one faction pushing its opinions on the others--they were all about protecting the rights of small numbers of elites--but the Constitution doesn't talk about how the senate governs itself as far as I know anymore than it sets the rules for how the House governs itself).

Not that it should really matter what the Framers think (although it does matter for practical purposes what the Constitution says), because this is something that we should first and foremost figure out on our own what we think about, not rely exclusively on what James Madison and Alexander Hamilton thought about it.
 
Abe Fortas was already a nominee. That was bipartisan, because he had major ethics problems. And he was nominated for chief justice.

Scalia and Ginsberg were overwhelmingly nominated so up to this time, ideology wasn't a factor. If your President won, that's it. Lesser nominees were bottled up. A good compromise would have dropped the fillibuster and prevented that in the future. That's why they trashed Bork. They hated his ideology, but they couldn't just come out with it.

If anyone really thought the fillibuster was on the table, they would have used it on Clarence Thomas. They didn't. Why? B/c it didn't even cross their minds they could use it. In other words, it is a novel four year tradition.
 
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