The Conservative Case for the Filibuster Deal

Steve Bainbridge explains in a Tech Central Station column, “Why I Support the Filibuster Deal.” He makes several arguments, centered around this thesis:

The filibuster is a profoundly conservative tool, which advances each of [Russell] Kirk’s goals. It slows change by allowing a resolute minority to delay — to stand athwart history shouting stop. It ensures that change is driven not “merely by temporary advantage or popularity” but by a substantial majority.

Of course, that applies to the filibuster as applied to legislation more so than to stopping presidential nominees from getting through. If the deal were truly in good faith, with the minority using the extraordinary measure of the filibuster only in “extraordinary circumstances,” then a strong argument could be made that keeping nominees that can not garner the support of a few moderates of the opposition party off the bench would be a good thing. As he points out,

[W]hat happens if President Hillary (with a 50-50 Senate split) nominates somebody like Larry Tribe or, worse yet, Margaret Marshall to the Supreme Court?

I would note, though, that it was not that long ago that Antonin Scalia, with a long paper trail, was confirmed 98-0. And, aside from some recent issues involving his academic integrity (see here and here), I always thought of Tribe as “the liberal Robert Bork” — annoying to the other side but inarguably superbly qualified for the Supreme Court. It seems to me that the proper means of keeping the likes of Margaret Marshall off the bench is to avoid electing the likes of Hillary Clinton president or, failing that, not doing it simultaneous with a Democratic majority in the Senate. If the American people make those decisions in tandem, then having a qualified leftist or two appointed to the Supreme Court is proper punishment, indeed.

FILED UNDER: Congress, Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. wavemaker says:

    James, your archived post on Ponnuru’s piece ends questioning what advantage Tribe would obtain from his “self-aggrandizing.” I’m not sure it is that calculated. I think it’s just that Tribe is an exceedingly self-centered and egotistical person, and could not help himself given the opportunity.

    And you are certainly right — if the Dems win the Presidency and the Senate majority (any time soon) and a Democratic President nominates Larry Tribe, the anti-filibuster Republicans will have a hard time choking on crow. It will take all of the collective intellectual honesty of the caucus (perhaps not bountiful enough) to resist demonstrating (repeating?) the monumental hypocrisy that both sides have shown in arguing both sides of the filibuster coin over time.

    On a selfish note, I think a Scalia-Tribe running battle would be fascinating to watch.




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  2. McGehee says:

    In the hypothetical, I can guarantee that if the filibuster remains available for judicial nominees, and if the then-minority Republicans were to use it, they would be slammed six ways from Sunday by the LSM over daring to filibuster Madame President’s picks — and would attempt to justify their actions by saying, in effect, “they started it” and bringing up the present situation. And the Democrats would use the nuclear option that the Republicans were too wimpy to trigger when they had the chance.

    If the filibuster is no longer available, the Republicans would grind their teeth and complain, and send out a lot of fundraising letters griping about Madame President and her radical judicial nominees.

    In other words, it would be the first two years of Clinton 42, all over again.




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  3. Barry says:

    Bull. How often can you turn on the TV and see the Evul Leftist Meedya point out that the GOP gleefully denied over 60 Clinton nominees the sacred ‘up or down vote’ that the GOP now insists upon?




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