Cornyn does a fine job of responding to most of Byrd’s contentions. (I say this although–not that I wish to re-open this debate!–I side with Byrd and not Cornyn on the question of whether the Senate ought to change the filibuster rules.) It seems to me that the senator is letting Byrd get away with an awfully base-stealing use of the concepts of “free speech” and “dissent.”

Supposedly ending filibusters of judges “threatens the rights to dissent, to unlimited debate and to freedom of speech.” Because it could lead to the end of filibusters for other measures, ending judicial filibusters “could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy.” Ending filibusters “would mute dissent and gag opposition voices.” There are several more such references to “freedom of speech.”

But of course under any proposed rules change senators would have the right to speak out and to vote as they wish. They would be forced to allow an up-or-down vote where 51 votes prevailed. But if that’s an attack on free speech, so is a 60-vote rule. Take the case where 61 senators want to vote to confirm a judge and 39 senators object. Under the current rules, those 61 senators can cut off debate, hold a vote, and prevail. So, on Byrd’s account, it would seem that those 39 senators had their rights to freedom of speech trampled on. If 99 senators want to do something and Russ Feingold objects, Byrd’s version of freedom of speech would require letting Feingold have his way. Since Byrd is willing to compromise on this idiosyncratic concept of free speech, he ought to explain why his compromise is preferable to Bill Frist’s. And merely invoking that concept (repeatedly) can’t get him to his preferred conclusion.