George Will argues that the filibusters of President Bush’s judicial nominees should be allowed. Will shows that there is a very respectable conservative argument in favor of not changing the Senate rules to end the filibusters. Ultimately, however, I find his argument unpersuasive.
Will attacks from a conservative perspective a number of constitutional arguments in favor of changing the rules regarding the breaking of a filibuster. However, he doesn’t address the primary argument that conservatives are making, namely that Article I, Section 5 of the Constitution empowers the Senate to determine the rules of its proceedings, and that this rulemaking power allows a simple majority to alter the Senate’s standing rules at will. A scholarly discussion of this argument can be found here.
Turning the issue of prudence, Will argues that exempting judicial nominees from filibusters will enlarge presidential power. However, the president has always had the effective power to secure an up-or-down vote on judicial nominees when his party has controlled the Senate. Thus, the attempt to end the filibusters in question should be viewed as an effort to preserve, rather than enlarge, presidential power.
Will contends that the Republicans’ remedy is to elect 60 Senators. This begs the question. Why should Republicans have to elect 60 Senators to do what a simple majority has always been able to do?
My view is that the option Republicans are considering is constitutional by virtue of Article I, Section 5. Whether the option is prudential depends on whether it is necessary to overcome major abuse. If the Democrats were filibustering manifestly unqualified nominees, or if they were following past precedent, or perhaps if they were filibustering only one or two ideologically egregious nominees, then their abuse (if any) might not be major. But since the Democrats are using the filibuster in an essentially unprecedented manner, and certainly to an unprecedented degree, to block nominees whose qualifications are not being questioned, it is natural and proper for the Republicans to contemplate, and if necessary take, counter-measures. The counter-measure being considered here is not only constitutional, it is one that the Democrats themselves have threatened to use in the past to curb what they perceived to be abusive filibusters.