The Corner

Tough Crowd At Fedsoc

One reader in attendance:

K-Lo, what was notable about Frist’s speech was what he DIDN’T say. He

decried the filibuster as a threat to the separation of powers, he did

so only in the context of the Senate’s constitutional advice and consent

role. I realize that some on the right agree that the filibuster is

unconstitutional; others do not. But in front of the most favorable

audience he could ever find for the topic, Frist never once spoke of the

first principles of judicial nominees and the judiciary we are fighting

for. For him, the filibuster was just an inside baseball problem, and

his entire discussion of separation of powers never touched on the real

separation of powers issue – we want judicial nominees who know the

limits of the judicial power and the left wants nominees who are willing

to usurp legislative and executive functions. He refused to go near it.

Few people care about the Senate’s traditions or the inside baseball of

the filibuster as Frist wants to talk about it. IMHO, joined by many

better writers on the topic, this is why the Senate lost the 108th

Congress battle over nominees, and doesn’t bode well for either getting

a better chairman than Specter or getting a better judiciary. Frist

did indicate, without stating explicitly, that the filibusters won’t

continue. At least at our table, after his speech, we debated whether

he meant he had extracted concessions and was putting a good face on

them, thereby claiming a win without actually having to put through a

rule change, so the Dems could always start up again.

On the inside baseball front, Frist did not say that the filibuster rule

would be modified either (1) to force an actual and complete halt to

Senate business, like the old days or (2) to have ’sliding’ votes to end

it – although he described this option in detail as the Frist-Miller

resolution of last Congress. Frist discussed the “200 year tradition”

of the filibuster without ever mentioning that the modern version is a

far cry from what was used in decades past. I think Estrada would be on

the DC Circuit right now if the Senate had a real filibuster rule, not

the “double tracking” or whatever they call it that is in use now. If,

and I think only if, the filibuster actually forced the Senators to sit

and listen to the phonebook for hours, then people might care – because

no budget would get passed.

But as it stands, and as Frist presented it, the Republican Senate

leadership isn’t willing to stop navel-gazing and talk about the

underlying issue of what judges should and should not be confirmed as so

well described by Andy McCarthy and others. God forbid we lose the

White house – they will confirm anyone the Democrats ever send over as a

matter of Senate principle, instead of rejecting judicial activists as a

matter of Constitutional principle.

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