My practice, on the rare occasions when I find myself in disagreement with Ramesh, is to go back to the drawing board and try to figure our where I went wrong. That is not working for me this time, though.

My argument is that Ramesh and others who claim that judicial filibustering has meaningfully hurt the Democrats politically are engaged in wishful thinking (and no small amount of revisionist history). I have asked, for example: Other than the defeat of Daschle – which they hopefully but not convincingly attribute to the filibusters – what is the evidence that filibusters have actually cost the Democrats anything? This is a prelude to asking what is obviously the more significant question: Does whatever cost that can be quantified outweigh what Democrats gain by filibustering?

Ramesh has come back with an unpersuasive argument that filibustering almost singularly took Sen. Daschle down, no indication of filibustering fall-out independent of Daschle, and no engagement on the question whether the filibusters are a big net gain for Democrats, as I believe they are.

Ramesh begins by changing my argument in order to challenge it. I never contended, as he suggests, that filibustering did not hurt Daschle at all. What I explicitly said was (a) that the filibusters were part of a much broader case that Daschle was a stealth obstructionist, (b) that we can only say with confidence that it was this broader case (as opposed to the narrow issue of filibusters) that cost him his seat, and (c) that, as we cannot say confidently either that filibustering cost Daschle his seat or that South Dakota is a bell-weather of national trends, it is not justifiable to argue that filibustering has cost the Democrats nationally in any meaningful way. I have thus asked what other evidence, besides Daschle’s defeat, there might be to show, as Ramesh and others contend, that Democrats have “paid a price”? I also pointed out that Daschle very nearly won, and that, had he won, Ramesh and others would (quite properly) not have regarded that as a national approbation of the filibusters, so I don’t see how they can say Daschle’s defeat is a national condemnation of the filibusters.

Ramesh responds that my counterfactual doesn’t work because, if Daschle had won, “we could confidently have said that filibustering judges didn’t hurt him enough to cost him the election–but we would still have said that it hurt him.” But, as I said, I’m not contending that it didn’t hurt him at all; I’m contending that it wasn’t a big enough deal that you can identify it as the proximate cause of his defeat – much less extrapolate from it a credible claim that Democrats are paying a price across-the-board. If a few thousand votes going the other way would have caused Ramesh to say filibusters registered but weren’t that important, it is because, as an objective matter, filibusters registered but weren’t that important. Whether Daschle won or lost, the relative significance of the issue doesn’t change.

Moreover, Ramesh’s reliance on national polls showing that voters would rather have Bush than Kerry picking judges proves exactly nothing regarding either Daschle’s loss or public attitudes (if any) about filibustering. Those polls are reflective of leading questions being put to voters, not what is important to voters if you ask them in an open-ended fashion. I am certain that if you asked voters whether they would rather have Bush or Kerry picking the Secretary of Defense, you would get a sizable majority saying Bush. If you then asked the very same people, “Give me the top ten reasons you are voting for Bush or Kerry” (without supplying them with possible answers), the fact that the president chooses the defense secretary would be on almost no one’s list.

It is also worth observing that, in relying on polling data, Ramesh must draw extravagant inferences from polls that do not ask directly about filibustering. Had the filibusters actually been an issue of the consequence, as Ramesh suggests, such polling data would of course be readily available. It’s not, because it wasn’t. As a result, he is left to insist, conclusorily and without the slightest back-up, that “we know that those social issues [which polls indicate did have a profound impact on the 2002 and 2004 elections] are deeply entangled with the judicial-confirmation issue.” What in the world is the evidence of that? As a matter of straightforward fact, the fact that, say, a state judge in Massachusetts orders the state to permit gay marriage has nothing whatsoever to do with Democrats filibustering a nominee to sit on a federal appeals court in Texas. It is fair enough to say that voters (especially in the red states), are angry over and motivated by the former; but that hardly means they relate it to the latter, much less that they relate it in a way that makes them similarly angry and motivated.

I argued that the lack of political consequence of the judicial filibusters can be seen by the fact that Democrats did not filibuster the last two Attorneys General – because that position is identified with national security, something the public cares about, and Democrats thus understand the political fall-out would be profound. Ramesh doesn’t mention Gonzales at all but counters that at the time of Ashcroft’s nomination, AG was seen as important but not really national-security related. I guess I simply disagree – our main national security issue since the end of the cold war has been terrorism, and both officially (by means of executive orders) and unofficially (by means of countless high-profile press conferences), the AG was – up until the 9/11 attacks – the chief federal counter-terrorism official. But maybe that’s neither here nor there. For present purposes, the point is that when the cost would be high, the Democrats don’t filibuster. For judicial nominations, the cost has not been high; and even if it would now be somewhat higher than it was before, it does not come close to outweighing what they have to gain (in control of the courts and fundraising) by persevering in the filibuster strategy.

Finally, it’s fair enough to argue, as Ramesh does, that Democratic senators, who of course want to keep their seats, are apt to be more responsive to political pressure to end filibusters than liberal activists and donors. But the important point is that there would have to be an awful lot of political pressure to push them in that direction given how obsessively the activists and donors on whom they depend care about blocking conservative judges. I don’t think there is anything near that kind of pressure right now, nor do I foresee it without some cataclysmic event – like if the GOP deployed the “nuclear” option – that forces this issue into the public consciousness. Even if that happens, though, we should not overestimate our ability to control the terms of the debate (if we had such an ability, the thing would not be called the “nuclear” option – we’ve already lost that language battle). The media will paint Democrats as heroes who are trying to stop Bush nominees from rolling back the “progress” of the last 40 years. Some nervous Republicans, with 2006 looming, will go wobbly and attack “extremists” who have taken over their party. This will embolden Democrats. I just don’t see the conditions for this purported groundswell of opposition to the filibusters – not before and not now.