Discussing what's right till there's nothing left.

Thursday, February 4, 2010

Filibuster? Depends on Who's Ox is Being Gored

I won't go into the mundane history of the filibuster rule except to observe the rampant hypocrisy and short-sightedness of members of both parties when it comes to its use.

Filibusters are used all the time to stop bills from becoming laws by blocking votes on them in the Senate. They present a hurdle that usually means at least some members of the minority party must be on board to pass a new law.

The Filibuster has most recently gained attention because of its use to block judicial appointments. Some constitutional scholars argue that it is unconstitutional to use it for that because of the advise and consent clause. During the presidency of George W. Bush, judicial nominations were held up constantly despite the advantage in the Senate enjoyed by the Republicans. Miguel Estrada's appointment famously was held up for so long he eventually withdrew. But he wasn't alone.

Many conservative Republicans called for a rules change to be made that would exempt judicial nominations from the filibuster rule. They pointed to the advise and consent clause as their justification.

Now, with the tables turned, you don't hear much from Republicans about changing the rule. But you do hear of some famous conversion stories among Democrats. Freshman Senator Tom Udall recently wrote of his support fort the "Constitutional Option" to change Senate rules to only require a simple majority vote. He pointed to an alarming increase in filibusters in the last Congress. His timing seems as odd as his reasoning since the Democrats have enough votes to block any filibusters, at least until 5 p.m. today when Senator Scott Brown of Massachusetts is sworn in.

Still, the two issues involved are not the same. Ordinary law making is not covered by the advise and consent clause, whereas judicial appointments are.

As well, the prospects of one party retaining a large advantage or even the majority for any amount of time seems remote. So a rules change that looks good today may well be disastrous tomorrow. And changing the rules more than once carries a large political risk as it would appear to be gaming the system. Massachusetts did such a thing by changing the law on how a vacant Senate seat would be filled - one way when a Republican was Governor and another when a Democrat was. The result is that the people settled it.

My personal view would be to remove the filibuster for judicial appointment only. This follows more closely the strict interpretation nof the Constitution and defers to the president to appoint judges as he sees fit. The phrase "elections have consequences" seems to fit here. But the filibuster serves an important role in good government and law making and should not be removed for that.

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