The other day, I said in this space that Republicans over the last few years had been making an “idiotic” argument: namely, that it was unconstitutional to filibuster judicial nominees. Some people have asked me to defend the statement. I can’t do it, because the statement was too strong. But I do think that both sides of the debate over the procedural norms that should govern the confirmation of judicial nominees have been exaggerating the extent to which their views are commanded by the Constitution. Tom Daschle has said that the “the Founding Fathers” wanted “controversial” bills and nominees to have to get a supermajority in the Senate. He has never provided any evidence for this view, and there is no reason to adopt it.

I think that the Constitution neither requires senators to set rules creating supermajority thresholds nor prohibits them from doing so; that judicial nominees’ policy views should generally be off-limits in confirmation battles but that their judicial philosophies cannot be; that a president’s nominees deserve no great deference from senators; and that conservatives are making procedural arguments about the evil of filibusters, the necessity of deference to presidents, and the irrelevance of ideology to confirmation fights in order to avoid a battle of first principles that they fear too much. When Bill Clinton imposed a litmus tests on his nominees–all of them had to support the Court’s unconstitutional abortion jurisprudence–the appropriate response was not to give Clinton deference but rather to vote his nominees down. The Republicans’ weak procedural arguments do not seem to have affected Democratic behavior under Bush, but they may box in Republicans under a future Democratic president.

Digital subscribers who are interested in a fuller explanation of my views can find one in the last third of this article.