My Own Filibuster

In response to Myllyrd's question, I have to say that it's amazing that the public was so engaged and apparently passionate about the filibuster debate at all. That's not to say that it's not an important topic (it is), but it's awfully arcane and technical by the standards of most political debates. And yet there were direct advertisements on TV, on the radio, and arguments every night on political talk shows about the possibility of filibusters for judicial appointments.

I'm not sure, though, that the Republicans picked the best strategy, which was to dumb the issue down to a single sound byte, repeated over and over, that every judicial nominee "deserves an up or down vote." I can only assume that this particular detail was to distinguish the proposal from other types of votes, such as the "right or left" vote, or maybe the "boxers or briefs" vote. The simplicity strategy, which worked so well for Bush against Gore and Kerry, who by comparison kept getting detailed and nuanced, which made them look weak and (ahem) flip-floppy, didn't really fly here.

While the simple logic probably resonated with a certain base, one generally receptive to GOP positions, it totally ignores the whole logic of an actual filibuster (not to mention Categorically Imperative's astute points). And it turns out that you really don't need to know squat about parliamentary procedure to follow this arguement. First, filibusters are, by their very nature, probably unpopular. A filibuster only occurs when an elected minority is voicing strong opposition. The Senate is expressly designed to thwart popular will (and this is not to admit that nominees like Priscilla Owen do reflect the popular will, or should). This is why every state has two Senators, regardless of size, and this is why there are so many huge government subsidies that flow every year into the sparsely populated and supposedly conservative Midwest. So it's not as though a majority vote in the Senate is in any way a vote that reflects popular American sentiment. In fact, until the 17th amendment, Senators weren't even elected, but were appointed. So it seems remarkably unclear as to why Republicans were so frustrated that the purported popular will of the people (Preisdent Bush's mandate) was not being carried out in Senate confirmation hearings. If this were the case, why wouldn't the nation's founders simply have dictated direct elections for lifetime positions for federal judges? Or, why didn't they appoint the more straightforward House of Representatives to play the advise and consent role?

The clear answer is that there was never any intent for executive nominations to be rubber stamped, or approved by the people at large. The entire function of the judicial branch is to be as insulated a possible from the whims of current political sentiment, which is why appointments are for a lifetime, and nominations are subject to a very peculiar process. Every nominee clearly does not deserve a floor vote, which is only the last stage of this approval process, but try fitting this argument into an indignant, eight-second sound clip.

But getting back to Myllyrd's question, I say that it's a defeat for the Republicans, but not really a win for the Democrats. The Republicans were not able to achieve their stated goals of votes for all nominees. The Democrats, meanwhile, were able to stave off a major change in the political confirmation process, but didn't prove their own argument, which was basically that they have every right to block nominations of which they don't approve. This means that the Republicans can drag out the same sense of outrage if an extreme Supreme Court nominee is brought forth and the Democrats try a similar tactic again. Also, I would guess that this is strike number two in the Republican hubris department (Terry Schaivo was the first). One more of these unpopular congressional spats, and a lot of incumbents might be on their way out - like maybe 7% instead of the usual 2%.


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