The Filibuster Fiat

Congratulations to Kevin Drum, who has published a column in today’s WaPo entitled, “Resist the Filibuster Fiat.” It encapsulates several arguments Kevin has made over the last few months on his blog as to why the Senate Republican leadership should resist the urge to eliminate the filibuster as an option for thwarting judicial nominees. Most notably, Republicans have taken away other options, notably the Blue Slip rule, and flipped-flopped based on partisan advantage. Most hypocritically, Senate Majority Leader Bill Frist, who now acts as if filibustering judges is a moral outrage, himself supported a filibuster of Richard Paez, a Clinton nominee.

There are powerful arguments that these arcane Senate rules are fundamentally undemocratic — arguments to which I am sympathetic. But it’s harder to see any good argument for allowing the rules to be cynically changed based solely on who’s in power. If one blue slip is the rule when your opponents hold the presidency, then that should be the rule when your own party holds the presidency. Ditto for the rules on reporting nominees out of committee.

Given this history, fair-minded Republicans would be better advised to restore some of the rules they themselves once defended so fervently than to attempt to tear down the last one remaining. After all, no majority lasts forever. Legislators should keep in mind the question posed by Thomas More in “A Man for All Seasons” when his daughter’s suitor says he would cut down every last law to get at the Devil. “And when the last law was down,” More asks, “and the Devil turned round on you, where would you hide?”

I’ve argued many a time for playing by the rules of the game as agreed to beforehand. As I noted back in November, though,

At some point, the escalation has to stop and some level of comity restored. This strikes me as the perfect time. It’s not just because my guys are in power. The GOP has a huge majority of 55 seats to 44/45 for the Democrats (technically, Jim Jeffords is an “Independent” but he votes with the Democrats when it counts). Given that they’re likely to get their way on most issues anyway–and that as many as six Republicans would probably join with the Democrats in the case of an incredibly controversial nominee–why not set in place rules that ensure that presidential nominees are accorded an up or down vote? Not only is it quite arguably what the Constitution demands but it’s a good rule. Indeed, the constant threat of a filibuster for any but the most lukewarm nominees strikes me as much more “nuclear” than this.

It’s not simply that the rules are archane and undemocratic but that both parties are using rules designed for extreme cases all the time. While I’m not a fan of the filibuster, it’s one thing to use it to oppose a radical new piece of legislation that will have a disparate impact on a Senator’s state or region and quite another use it as a routine matter.

In sports, the best time to change rules is in the offseason, so that all parties have time to adjust and it’s not clear which team will benefit from the change. In politics, unfortunately, there are no offseasons. While I oppose changing rules that pertain to an election during a particular election cycle (let alone while the votes are being counted), there are few other bright lines. The closest thing the Senate has to an offseason is the beginning of a new two-year congressional cycle. That’s where we are now.

FILED UNDER: Blogosphere, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies 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. Kalblog says:

    The Senate
    Lots of people in the House like making fun of the Senate, because every Senator basically is walking around with the legislative equivalent of nuclear bombs in his pocket, so it’s much harder to get things done than over in…