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Bench Memos

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No Compromise



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All the talk over possible compromise solutions over the weekend ignore this important fact, which Brother McCarthy and Bill Kristol articulated well last week: The principal reason to eliminate the judicial filibuster is that it is the right answer from an institutional perspective, regardless of who controls the Senate or the White House. The stakes are far greater than the fates of individual nominees, although that is important. The stakes are really about the institutional balance of power–or the constitutional separation of powers, if you prefer–between the Congress and the president. If internal Senate rules can be used to prevent majoritarian advice and consent on judicial nominations, the president’s clearly delineated power to make selections for the federal courts can effectively be stripped from him. In addition to the hypotheticals posed by Andy in his article, what would prevent the Senate from deciding that a supermajority of 70, 80, or 90 was required for appellate court confirmations, given their importance? Why not unanimity? How about special rules for Supreme Court appointments? It takes just a moment’s thought to see that if the judicial filibuster is allowed to survive and thrive, the Senate could effectively put itself in a position to dictate appointments to the president, rather than simply advise and consent to those made by him. This would turn the constitutional scheme on its head and deprive the country of the benefits envisioned by the Framers and explicitly discussed in the Federalist Papers of presidential, rather than congressional, appointments. The only reason that devices like the filibuster and the blue slip have traditionally been tolerated, at least as a theoretical matter, is that they have been used with great restraint and only in truly exceptional cases. (I am not conceding here, of course, that the filibuster has ever actually been used at all against nominees to the bench.) The total abandonment of that restraint is what has really changed over the last few years, and what has set in motion the current confrontation.

Given that no sensible person believes the current party alignment will persist forever, both parties really should be approaching this issue in a high-minded way and trying to divine the right answer from a constitutional perspective. That, I would submit, is an easy task, notwithstanding the well-known tendency of any branch of government to try to aggrandize its own powers at the expense of the others.

What the country needs is not a compromise but a vote on the constitutional propriety of the judicial filibuster. And if the Republicans don’t take that vote now, the Democrats surely will when the worm has turned once more.



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