Posted on 05/26/2005 9:46:19 PM PDT by Lando Lincoln
The so-called Gang of 14's deal on judicial nominations aroused the ire of activists on both the left and right, but it is my friends on the right who seem to have been most disaffected. In contrast, I'm a proud charter member of the Coalition of the Chillin', which is dedicated to the proposition that the world did not end on May 23rd. (We even have t-shirts!)
Some critics of the deal wanted the Senate GOP majority to pull the trigger on what they call the constitutional option (and the rest of us call the nuclear option), so as to establish a purported constitutional principle that the advice and consent clause does not authorize the Senate to require a supermajority vote to approve judges. I respect the expertise of the many scholars who hold this position, but am not persuaded by it.
The constitutionality of the filibuster as applied to judicial nominations (or anything else for that matter) is quite complex. It's said that the Constitution's advice and consent provision is counter-majoritarian. But so what? So are things like the committee process, holds, and unanimous consent requirements. I believe that the Constitution permits all of these practices, even though they're counter-majoritarian. The Constitution, in Article I, section 5, seemingly contemplates that the Senate may adopt rules other than those set forth in the Constitution: "Each House may determine the rules of its proceedings." Isn't the filibuster rule just such a procedural rule?
It is said that the Constitution sets out specific instances in which a supermajority vote is required. The advice and consent provision is not among them. But so what? The Constitution doesn't say the list of supermajority vote requirements is exclusive. Just as shareholders of a corporation can adopt bylaws requiring a supermajority vote for matters as to which the corporation statute only requires a majority vote, why doesn't Article I, section 5 allow the Senate to do likewise?
Besides which, the GOP used blue slips and Judiciary Committee rules to bottle up dozens of Clinton judicial nominees in committee. As, of course, the Democrats sometimes did to Bush 41 and Reagan nominees. So even if the Constitution requires an up-or-down vote on every nominee, there is bipartisan history of ignoring that rule. Too many of my conservative friends are ignoring this little fact.
Other critics of the deal make the partisan claim that the Democrats will simply do away with the filibuster whenever it suits them, to which I offer three observations: First, a chief problem with American politics these days is the assumption on both sides of the aisle that the other side is unprincipled. There are people of good will and principle on both sides and I, for one, am willing to take the Democrats who signed the deal at their word. Of course, as Ronald Reagan said, "trust but verify." Second, as a practical matter, changing the filibuster is tough. It's only happened a relatively few number of times. The Democrats never tried it back when the GOP filibustered Clinton legislative proposals. Indeed, the Democrats never even tried to change the Judiciary Committee rules that the GOP used to bottle up Clinton nominees in committee. So why should the GOP pave the way for them? Finally, and most importantly, even if the Democrats are as unprincipled as some on the right argue, does that mean we on the right should also give up our principles? Two wrongs, after all, do not make a right. Hence, we come to my main point, which is that the deal preserved an important constitutional principle.
In my view, critics of the deal are putting short-term partisan gain ahead of both principle and long-term advantage.
Russell Kirk taught that there are ten core conservative principles, but at the heart of all of them is the basic notion that change should be slow and prudent:
Conservatives are champions of custom, convention, and continuity because they prefer the devil they know to the devil they don't know. ... Burke's reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to be gradual and discriminatory, never unfixing old interests at once.
... In politics we do well to abide by precedent and precept and even prejudice, for the great mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any man's petty private rationality.
... Any public measure ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity. Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away. As John Randolph of Roanoke put it, Providence moves slowly, but the devil always hurries.
The filibuster is a profoundly conservative tool, which advances each of Kirk's goals. It slows change by allowing a resolute minority to delay -- to stand athwart history shouting stop. It ensures that change is driven not "merely by temporary advantage or popularity" but by a substantial majority. Is it any wonder that it has usually been liberals who want to change or abolish the filibuster rule? The left knows that the filibuster is a deeply conservative weapon whose main function is to advance the function the founders intended for the Senate:
In selecting an appropriate visual symbol of the Senate in its founding period, one might consider an anchor, a fence, or a saucer. Writing to Thomas Jefferson, who had been out of the country during the Constitutional Convention, James Madison explained that the Constitution's framers considered the Senate to be the great "anchor" of the government. To the framers themselves, Madison explained that the Senate would be a "necessary fence" against the "fickleness and passion" that tended to influence the attitudes of the general public and members of the House of Representatives. George Washington is said to have told Jefferson that the framers had created the Senate to "cool" House legislation just as a saucer was used to cool hot tea. (Link)
The filibuster furthers that objective by ensuring that change is, as Kirk put it, "gradual and discriminatory, never unfixing old interests at once."
Proponents of the nuclear option claim to believe that abolishing the filibuster could be limited to judicial nominations. It's a coin flip as to whether this is naive or disingenuous. It's a slippery slope to abolishing the filibuster as to Presidential nominations or even legislation. Would the GOP be tempted to abolish the filibuster if necessary to put John Bolton at the UN? Or to ram through Social Security reform? Even if the GOP resisted that temptation, what happens the next time the Democrats control the Senate? A GOP-established legislative and institutional precedent for abolishing the filibuster as to judicial nominations would make it all that much easier for the Democrats to do the same as to nominations or legislation. (Imagine President Hillary with a 50-50 Senate split and, say, Mark Warner as VP. What will prevent HillaryCare II if we don't have the filibuster then? Our slim majority in the House?)
Even if this precedent could be limited to judicial nominations, what happens if President Hillary (with a 50-50 Senate split) nominates somebody like Larry Tribe or, worse yet, Margaret Marshall to the Supreme Court? Wouldn't it be handy to still have the filibuster around then? Sure, the Democrats could pull the nuclear option, but, again, why should the GOP pave the way?
I've been as critical of Democrat obstructionism as anyone. But even in the unlikely event that pulling the trigger on the nuclear option would have guaranteed that every one of President Bush's current and future nominees ultimately would have passed a confirmation vote, the cost in terms of both principle and long-term advantage still would have been too high.
Lando
The only real argument I could come up with for not using the nuclear option would be the old principle of not wanting to back a rabid rat into a corner.
I guess by that logic Bush can just swear them in without even going through the senate, after all, THAT's counter-majoritarian, too.
A fillibuster in judicial confirmations is wrong no matter who does it--like it or not, if HRC is president she got there by the legal process of becoming president; ditto a democrat majority. The minority shouldn't have the right to clog up the will of such a majority. And how does screwing ourselves now so we can screw them later help anything?
Those preparing for the day we're no a majority--and those senators who behave as if we aren't a majority--are paving the way for the end of that majority.
Demonrats have never resisted the temptation before.
But hopefully, it will be the end of some political careers.
Cool flag, BTW.
They're rats and probably rabid, but they've been in that corner for some time, particularly over judicial nominees. Time to deliver the knockout poison and kill obstructionism in this arena. The federal judiciary is more important than social security, Iraq, the budget, etc..., because the decisions judges make impact the lives of Americans more substantially than legislation, particularly in recent years. More voters understand this every day. The payoff if they deliver on the nominees will be enormous, and the consequences of failure significant. We've seen progress since Monday, but they must keep their eyes on the prize and push forward. Frist is doing that, so far, I believe.
We will not tire * We will not falter * We will not fail
Reading all the replies so far tells me that people who call themselves "conservatives" are not really politically conservative. They are instead populists that happen to be socially conservative.
LOL. You really don't think there is a difference, do you?
Oh well. I guess I'll have to start using the term "classical conservative" now that the populist/fundamentalists have taken over.
Feel free to share your definition of "classical conservative".
I agree that many conservatives are overreacting to the compromise. But I also belive that the lamestream media is showing their bias when they label it a defeat for Bill Frist.
I just wish that the pubbies had gotten more mileage out of the judges that were being blocked. In my area, some group finally started running some ad that was on the air yesterday. It was a great ad about Janice Rogers Brown. The argument should have been moved away from an discussion about Senate rules and tradition and to the actual consequences of what was being blocked.
bttt
I'm with Bainbridge. Good post.
Bainbridge is a joke. From his own very special website - professorbainbridge.com
Over at NRO's Bench Memos blog, Jonathan Adler and somebody named Mark Levin are debating the filibuster deal. Levin's been banging away at me in several posts (and in the process violated basic blogosphere etiquette by failing to link to those of my posts he's criticizing). In contrast, Adler gets it exactly right:
I dont think many conservatives maintain that the filibuster is useful as a tool to block judges. Rather, I think many conservatives believe that the filibuster is a useful legislative tool insofar as it allows conservatives to block the growth of government. The connection is that many conservatives rightly feared the proposed rule change for judicial nominations would lead to the complete elimination of the filibuster for all purposes the next time conservatives sought to block a liberal initiative. That is, getting rid of it where it is improper would lead to getting rid of it where it is proper and useful.
Update: I think I hit a sore spot. Levin sent me this email and told me to post it:
"Somebody named Professor Bainbridge is a little thin-skinned. I don't post my comments. NRO does. Take your etiquette complaint up with NRO. Having said that, IMHO your filibuster argument was George Will redo. Maybe you should have linked to his original story, just for comparison purposes. You know, blogger etiquette and all. I didn't think it was particularly harsh criticism, but you didn't handle it very well. Good luck to your students."
Umm. And I'm the one who's thin skinned? What a jerk, IMHO. But compare, contrast, and decide for yourself.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.