At Public Discourse today, I write “In Defense of the Filibuster.” Bench Memos readers with long memories may recall that in this page’s first few weeks in May 2005, we had a lot of discussion among Ed Whelan, Andy McCarthy, me, and others about the Democrats’ use of the filibuster to block Pres. Bush’s judicial nominees. The air was full of “nuclear option,” the “Gang of Seven,” and so on. I said then that while the filibuster was quite constitutional, the defense of it as a deliberative tool was unsound. But the context of our discussions was the filibuster against judicial nominations. And there isn’t much “deliberation” going on when opponents of a judicial nominee simply deny him or her a debate and a floor vote. For one thing, the choice is binary (yea or nay on the nomination), and there isn’t much of a middle ground toward which to deliberate. Where legislation is concerned, on the other hand, the filibuster has real value, making possible a deliberative convergence on a more reasonable outcome.
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