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Right Intention: George Will's Take On Filibustering Judges

Sunday, March 20, 2005

George Will's Take On Filibustering Judges

George Will brings up some interesting points about the "nuclear option" for ending judicial filibusters:

The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?

And pruning the filibuster in the name of majority rule would sharpen a scythe that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations -- and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?

Exempting judicial nominations from filibusters will enlarge presidential power. There has been much enlargement related to national security -- presidential war-making power is now unfettered, Congress' responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?

The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the last 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.


I am leery that Democrats might try to change filibuster rules for their agenda in the future, the same way they broke precedent and forever politicized judicial nominations by their opposition to Bork. At the time, I wasn't fond of the Bork nomination either. But I also thought the opposition to Bork was ridiculous, dangerous and full of unforeseen consequences. Now look where we are. The same potential exists for changing the filibuster.

That said, I don't agree with George Will that the best solution is to try to win a filibuster proof majority in the Senate. First, I think it's unlikely that the Republicans will get sixty seats next time. Second, the Democrats aren't cooperating on anything anyway. I'm not sure how much more obstructionist they can be. It's a point of pride to the party to be against anything Bush is for. Third, I don't like the idea of two years of nonstop posturing just for the sake of trying to blame the opposition for a lack of accomplishments during the last congressional session. If the Democrats are going to mindlessly oppose every single Republican idea, which they are intent on doing, the Senate may as well accomplish what it can, which is staffing the judiciary.

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