The Democratic position on the filibuster comes down to this: Senators should not be allowed to vote up or down on judges, because judges have to stay in the business of keeping voters from being able to decide policy issues. Anti-democratic ends justify anti-democratic means.
Almost everything else in the debate is a diversion. The text of the Constitution does not forbid the Senate to let the majority confirm judges, as Democrats preposterously insist; nor does it require it. Only somewhat less preposterously, the Democrats and their pundits have been arguing that the logic and structure of the Constitution support the filibustering of judges: The Constitution is designed to throw up counter-majoritarian obstacles to action. That’s true at a high altitude of abstraction; it does not mean that the particular obstructionist device of filibustering judges is constitutionally required or wise. Filibusters have never been routinely used against judicial nominees–never, that is, until Senate Democrats decided to block as many of the important judicial nominees of this administration as they could.
There is no reason in principle to reject compromise. But no real compromise has been offered. Senate Democrats have floated various proposals, under all of which they reserve the right to filibuster “extremist” nominees. Their promiscuous use of the filibuster against “extremist” nominees demonstrates their elastic definition of the term. If Republicans accept these proposals, the Democrats will carry on filibustering–and Republicans will face the same choice as today. The Democrats’ hope is that they will face that choice under worse circumstances than they do now. They are trying to buy time.
For Republicans to leave the filibusters in place now after months of demanding a change would be ignominious. The same pundits who are saying that the majority party should not insist on its prerogatives would turn around and say that the majority party is responsible and should be held accountable for everything the government does. More important, a surrender would tell everyone–conservative voters, Democratic senators and interest groups, and the White House–that Republican senators were irresolute in their support for judicial conservatism. It would thus set back the urgent cause of a reformation of the federal judiciary.
“When the minority abuses its
privileges, the majority is called on
to take corrective action. This is
such a time.”
A majority of the Senate has to be able to set the body’s rules. It would be unwise for it to do so without regard for the minority. After all, every senator will be in the minority on some issue, and every senator is one election away from the possibility of being in the minority most of the time. But when the minority abuses its privileges, the majority is called on to take corrective action. This is such a time.
The liberal minority in the Senate is trying to keep the courts in the business of imposing the left-wing agenda that the public won’t vote for on its own. This project should be brought to an end–by bringing an end to the filibustering of judges.