The Case for Filibusters, Version 2.0

A mostly political Weblog.
April 24 2005 4:09 AM

kf Filibusters Itself!

Plus--The Ecology of Blarney.

Fisked by Fidel: Castro reads the papers to his subjects while waiting for "election" results. He's no Harry Shearer, but he does [search for "Golden"] interpolate his own spin in between the paragraphs of A.L. Bardach's previously linked WaPo piece on Senor Posada. ... You can't say he doesn't Read the Whole Thing. ... P.S.: Castro describes Bardach as "not a friend of Cuba," something Oliver Stone  discovered on his own last year. ... 3:54 P.M. link

kf Filibusters Itself! My colleague and boss Jacob Weisberg wants to keep the filibuster for judicial nominations, as do I. But I don't understand this graf of his argument:

Sen. Bill Frist, the chief promoter of the nuclear option, says he wants to do away only with filibusters of judicial nominations and would not rule them out of order with respect to legislation. But there's no principled, or even plausible, distinction here. The Constitution says "advise and consent," which means senators get to play a role in judicial selection. They're within their rights to use every available procedure to block nominees they object to. [Emph. added]

The Constitution does say "advise and consent," but as Weisberg notes it doesn't say anything about filibusters. That leaves the Senate to structure the "advise and consent" process as it sees fit. And there are several plausible distinctions between judicial nominations and legislation. The problem is that most of these distinctions cut in the opposite direction from the one Frist is going in: 

1) Judges are for life, as Rick Hertzberg notes, while mistaken legislation can be repealed by subsequent Congresses.

2) Judges (however long they serve) have acquired unaccountable, super-legislative powers the Framers almost certainly didn't anticipate. When mere legislators get mad at judges and try to hold them accountable, eminent lawyers from their own party swat them down. When Presidents try to hold them accountable, they're accused of court-packing. Basically, they are not accountable the way other players in the system are--certainly not accountable in any way commensurate with their power.

Both these factors suggest that we must be really, really careful in selecting judges in the first place, which is why both factors militate in favor of requiring compromise--which is what filibusters do.

That said, I also don't understand parts of my own previous pro-filibuster-for-judges argument. In particular, I mentioned the extra deference traditionally paid to Presidential court picks by members of his own party--which now seems like a pretty weak basis for requiring extra compromise in judge-approving votes. Would Bush really get out-of-the-ordinary, lockstep GOP support if he nominated, say,  Richard Epstein  to the Supreme Court? I'm not so sure.

Plus, there's a much more powerful reason--a third reason--for treating judicial votes differently that I completely overlooked, namely that the Senate's advise-and-consent votes are votes that don't involve the House in any way. That means one of the basic majority-obstructing mechanisms the Constitution provides for legislation--the need to get two quite different legislatures to agree--simply isn't there when it comes to voting on judges. SenatorFrist could reasonably say that, because judicial appointments are treated differently from laws in the Constitution, we need extra anti-majoritarian protections like the filibuster when we consider judges.

Of course, Frist has said exactly the opposite--that we need fewer anti-majoritarian protections when it comes to judges. That's why I think he's wrong. But it's not as if he couldn't come up with any plausible reason why the distinctions between judges and legislations require that result. He might argue that judges are so permanently powerful that our only hope is that a president knows he'll be held strictly accountable if he appoints a turkey--which means his responsibility has to be crystal clear. Forcing a compromise with an opposing, filibustering minority party only muddies these lines of accountability and lets each party blame the other--acceptable with correctable legislation, but not with life-tenured superlegislators.  I don't buy this argument--Presidents have plenty of ways to duck responsibility for bad judicial appointments; it's better to prevent them in the first place. But it's an argument.

P.S.: I also  made the not-wildly-strong argument  that we can safely eliminate the filibuster for legislation because Presidents will still have to compromise with dissident members of their own party. That's true, but if intra-party diversity were the only thing blocking majoritarian legislative extremism there wouldn't be all that much blocking going on these days. The real reason for ending the legislative filibuster is the one stated by Timothy Noah--that the prospect of actually enacting laws with a simple majority vote will force the President's entire party and the President himself to behave more responsibly: