Bench Memos

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An Abuse Compounded


The constitutional (or so-called “nuclear”) option is limited to debate over judicial nominees. Those who support it say that preventing an up or down vote on the president’s choices for the federal bench is an abuse of the filibuster. Fair enough. These supporters usually say (or imply) that when it comes to ordinary legislation — say, a highways bill or a civil rights measure — the filibuster is legitimate because a minority ought to be able to stymy legislation it very strongly opposes. Maybe; the question is how to protect minority interests, and talking until the wee hours is just one way. But it is still worth noting that the legislative filibuster is itself an abuse, an abuse of the privilege of unlimited debate. “Unlimited debate” and what we call the “filibuster” are not the same thing. Certainly, one can affirm the proposition that any member of a deliberative body who has something germane to say ought to be heard, no matter how long it takes, without endorsing the proposition that some members who cannot defeat a proposal on the merits may properly band together and talk, talk, talk precisely to defeat the proposal, either by causing its proponents to abandon it or by talking until the session ends. This is, of course, exactly what the Democrats want to do. None of them suggests that Republicans want to vote on, say, Janice Brown before everyone gets his or her say. No Democrat says that Senator Frist’s limit of one hundred hours debate is not enough to air the case against her.

Truth be told, there probably isn’t a thing that Democratic senators want to say about Janice Brown that they have not said already.


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