- The Washington Times - Monday, May 9, 2005

I have been wracking my brain for a while now for a good reason for Republicans in the Senate not to get rid of the filibuster in the case of judicial nominees. You know, something about the higher need for comity, respect for the traditions of the “world’s greatest deliberative body,” the need for majorities to act with restraint so that minorities do not feel oppressed, etc.

I give up. There are no principles at stake here. The prerequisite for a Senate rule that requires 60 votes for cloture is sufficient institutional comity to ensure that the filibuster is not abused. That comity does not currently exist. The issue is entirely partisan. And there is no peace available as a result of Republican restraint: Democrats will argue quite plausibly that the pressure they generated forced the Repubican Party to back down and will take that as an indication that heightening the confrontation is their best strategy.

If not out of loftier motives, then perhaps the Republican Party should exercise restraint for fear of the consequences? Democrats threaten to shut down the operation of the Senate for the foreseeable future; Republicans will not always be the majority and will then appreciate the filibuster as a protection of minority rights.

Democrats will do what they think is in their political interest. At the moment, they think their political interest is better served by a declaratory policy of confrontation. I say “declaratory” because the Senate has actually been doing some constructive work. President Bush has been able to sign bankruptcy-reform legislation and class-action lawsuit reform so far this year. So, if Senate Democrats see that they have an interest in playing ball, they will play.

As for the consequences of a future reversal of GOP fortune in the Senate, given the current frame of mind of Senate Democrats, Republicans should expect to see a Senate Democratic majority shove everything down the throats of the minority it can. If Republicans don’t now end the filibustering of judges, and minority Republicans one day start filibustering judges nominated by a Democratic president, the Democratic Senate majority will end it then.

For comedy, you can always count on the New York Times editorial page. On Jan. 1, 1995, here’s what the Times said about the filibuster: “The U.S. Senate likes to call itself the world’s greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Sen. Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him. … Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose.”

One would have to call that a principled position, coming as it did on the eve of a Republican-majority Congress. Here’s the Times on March 29, 2005: “A decade ago, this page expressed support for tactics that would have gone even further than the ‘nuclear option’ in eliminating the power of the filibuster. At the time, we had vivid memories of the difficulty that Senate Republicans had given much of Bill Clinton’s early agenda. But we were still wrong. To see the filibuster fully, it’s obviously a good idea to have to live on both sides of it. We hope acknowledging our own error may remind some wavering Republican senators that someday they, too, will be on the other side and in need of all the protections the Senate rules can provide.”

In truth, the editorials are most striking for what they have in common: Republicans are bad. On March 29, 2015, when President Obama is in the White House and Karenna Gore is Senate majority leader, I fully expect to read a New York Times editorial containing a passage along the following lines: “Now, at last, it’s time for this extraconstitutional, undemocratic tool of obstruction to go once and for all. A decade ago, this page retracted a position against the filibuster we had taken a decade before. We were wrong then and right the first time. We hope that acknowledging our own error of 10 years ago, embarrassing though it may be, will give others the strength to review and overturn outmoded positions that do not speak to the circumstances of today.”

Getting rid of the filibuster for judicial nominees would indeed be an escalation in partisan conflict. But wholesale derailing of potential Supreme Court nominees at the appellate level by filibuster was also an escalation, and it’s unacceptable. So, Republicans might as well act like the Senate majority they are, and, by majority vote, make sure that judicial nominees who make it out of the Judiciary Committee get an up-or-down vote on the Senate floor.

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