What is the filibuster? It is “a time-honored Senate procedure that prevents a bare majority of senators from running roughshod,” according to our friends on the New York Times editorial page. But that was in 2005, when Republicans frustrated over Democratic filibusters of President George W. Bush’s judicial nominations were (with National Review’s support) considering the so-called nuclear option, the overblown name of which suggests that it is rather more than a change in the Senate’s procedural rules. The Times denounced the Republicans’ “rank hypocrisy” in 2005, as did any number of Democrats. Having reversed themselves at the dictates of convenience, they show themselves to be hypocrites on the matter at hand and also on the subject of hypocrisy — call it hypocrisy squared.
The Democrats here are helping themselves to ill-gotten gains. Using the filibuster and other stalling techniques, they kept judicial vacancies open by closing them to Bush nominees. Miguel Estrada was kept off of the D.C. Court of Appeals by a filibuster; Democrats refused to process John Roberts’s nomination to the same court (to succeed James Buckley, the gentleman previously known in these pages as the sainted junior senator from New York). Later, when Roberts was named to the Supreme Court, Democrats blocked George W. Bush’s nominee for his replacement, Peter D. Keisler. Roberts’s earlier nomination advanced only after Republicans took control of the Senate, something that Harry Reid in his hubris seems to think will never happen again.
The filibuster is not sacred writ, and we are on record supporting procedural changes to overcome partisan obstruction. The more serious concern here is that the Democrats are attempting to pack the courts, especially the D.C. Circuit court, with a rogue’s gallery of far-left nominees. That is worrisome in and of itself, but there is a deeper agenda: Much of what President Obama has done in office is of questionable legality and constitutionality. The president no doubt has in mind the sage advice of Roy Cohn: “Don’t tell me what the law is. Tell me who the judge is.” He is attempting to insulate his agenda from legal challenge by installing friendly activists throughout the federal judiciary. That is precisely what he means when he boasts, “We are remaking the courts.” Republicans are in fact obstructing those appointments; unlike the nomination of John Roberts et al., these appointments deserve to be obstructed.
The filibuster is a minor issue; the major issue is that President Obama is engaged in a court-packing scheme to protect his dubious agenda, and Harry Reid’s Senate is conspiring with him to do so. The voters missed their chance to forestall these shenanigans in 2012. They made the wrong decision then, and have a chance to make partial amends in 2014, when they will be deciding not only what sort of Senate they wish to have, but what sort of courts, and what sort of country.