The editors of the New York Times have again called for Harry Reid “to alter Senate rules so that every judicial and executive branch nominee is assured an up-or-down vote within 90 days.” As happy as I would be to see senators move away from the practice of filibustering judicial nominees, history makes it impossible to believe that Democratic senators would apply the same set of rules to nominees who embrace originalism. So it is impossible to read editorials like this one without laughing. As my Bench Memos colleague Ed Whelan pointed out last January, in response to a NYT editorial on the same topic:
In 1995, when Bill Clinton was president and the filibuster was being used only against legislation and executive-branch nominees, the NYT (in “Time to Retire the Filibuster”) called for the Senate “to get rid of an archaic rule that frustrates democracy and serves no purpose.”
But in a dozen or so editorials between 2003 and 2006 (gee, who was president then?), even while recognizing that “the filibuster has not traditionally been used to stop judicial confirmations,” the NYT supported its use against Bush 43 nominees and hailed its existence as “go[ing] to the center of the peculiar but effective form of government America cherishes.”
Indeed, the NYT said it had learned its lesson since its 1995 editorial:
To see the filibuster fully, it’s obviously a good idea to have to live on both sides of it. We hope acknowledging our own error may remind some wavering Republican senators that someday they, too, will be on the other side and in need of all the protections the Senate rules can provide.
Now, in 2012, the NYT opposes Republican senators having “all the protections the Senate rules can provide.”