Breakin' the Rules
John Kalb has some good thoughts
on the filibuster, but seems to think that Frist's nuclear option is just as legitimate as the Dems using the filibuster to block Bush's nominees. Er, maybe if you subscribe to some higher notion of legitimacy—though I still have yet to hear the principled case as to why it's "fair" for all nominees to receive an up-or-down vote—but if you think Senate rules are important, it's clear that the nuclear option is pretty illegitimate in a way that judicial filibusters aren't.
A quick recap: If Republicans in the Senate wanted to use normal channels to change the rules so that filibusters are disallowed for judicial nominees, they could, but it would take
67 votes, which obviously they don't have. So the alternative is this: The nominees would be introduced, Democrats would filibuster. Either Dick Cheney or the Senate President Pro Tempore would declare the filibuster unconstitutional. Democrats could appeal the ruling, at which point a Republican Senator would move to scrap the appeal, and a simple majority of Senators could uphold his motion. That means Cheney's ruling would stand, and the judicial filibuster would be no more. There are a couple of other ways to do it, but in every case, the Senate parliamentarian—who was put in place by the GOP—would rule
against the "nuclear option". Republicans would simply override him. Frankly, it seems that allowing a simple majority to override any Senate rule they feel like—or worse, allowing a sitting vice-president to play judge and simply declare a rule "unconstitutional"—sets a far worse precedent than any abuse of the (perfectly legal) filibuster does.
At any rate, even the National Review has admitted
that the judicial filibuster is within constitutional bounds—they just think it's unseemly, or unfair. Well, fine, but let's also cut the bullshit. If the situations were exactly reversed, Republicans would have no problem launching the filibuster against, say, John Kerry's "extremist" nominees. And Democrats would bitch and likely consider going nuclear. We're all hypocrites. The interesting question, to my mind, is whether, regardless of what's been done in the past, we should
agree to have a judicial filibuster in the future or not, and who wins out from not having one in the long-term. I have a piece coming out on the Mother Jones
site either today or tomorrow talking about this, so, uh, stay tuned...