Many conservatives are unhappy that the compromise agreement preserves the judicial filibuster as a weapon that might be wielded “under extraordinary circumstances.” They should count their blessings and hope the deal sticks. Galling as it may be to have qualified nominees obstructed, changing the rules mid‐game could do serious damage to the Senate’s ability to check what Madison called “the facility and excess of lawmaking.” Specifically, if the Republicans trigger the nuclear option, they may end up nuking the legislative filibuster as well.
A “second strike” from a future Democratic majority could be used to prevent minorities from filibustering legislation that the majority favors. “Once you get the procedural method [of the nuclear option] through,” says Richard Pious, professor of political science at Barnard College, “then if you have 50 votes and a vice president presiding, I think you can do it.” The procedural method involves the presiding officer of the Senate (either Vice President Cheney or President Pro Tem Ted Stevens) declaring that the filibuster is unconstitutional as applied to judicial nominations.
Why is the judicial filibuster unconstitutional? According to GOP leaders, when the Framers wanted a supermajority for advice and consent, they wrote it into the Constitution, as they did for treaty ratifications. Thus, the Constitution’s silence on presidential nominations implies that a bare majority is all that’s required for confirmation. But the same argument applies to the legislative filibuster: when the Framers wanted a supermajority, as they did for overriding a presidential veto, they said so. Under the convenient constitutional logic employed by the GOP, the legislative filibuster — a time‐honored practice — turns out to be unconstitutional as well. Who knew?
Would a future Democratic majority play this game? It’s entirely possible. Crafty liberals in the punditsphere, such as the American Prospect’s Matt Yglesias and Slate’s Tim Noah, have recognized that the filibuster is essentially a conservative instrument, one that over the long haul operates to the detriment of liberal goals. If a future Democratic majority agrees, the nuclear gambit will work as well for them as it will for the Republicans. The Republican response to this possibility appears to be, we’ll slip down that slope when we come to it.
Republicanism of the small “r” variety distrusts untrammeled majoritarianism and favors checks on temporary political majorities. In the years to come, Congress will once again debate single‐payer health care. Conservatives and libertarians should ask themselves, do we want to go into that fight with the filibuster, or without it?
And perhaps the GOP shouldn’t be so quick to throw away the judicial filibuster either. Decrying “judicial tyranny” is a staple of Republican rhetoric today: the GOP fears the considerable power wielded by “unelected, unaccountable” federal judges. Why then are Republicans so keen to weaken the Senate’s check on future Democratic presidents’ ability to stack the courts? Writing in Salon.com, Farhad Manjoo muses, “imagine having 52 Democratic senators one day, a Democratic president, and the chance to nominate a real liberal to the Supreme Court. And imagine, too, the Republicans not having any power to stop you. It’s a delicious thought.” But it’s not a thought that would occur to a movement that can’t think past the next election cycle.
Too often in recent years, the GOP has behaved as if it can’t imagine itself out of power. Few, if any, Republican legislators opposed President Bush’s assertion, in the Jose Padilla case, that the president has the power to lock up American citizens without charges or trial for the duration of the war on terror. Even today the Senate is debating whether to give the FBI unreviewable subpoena power: the legal authority to demand financial documents, medical records, and the like, without the inconvenience of going before an independent judge. If Bill Clinton had claimed these powers — or if a future President Clinton were to claim them — Republicans would be apoplectic. Instead, they cheer the centralization of power and the erosion of checks and balances. These are the actions of a party that imagines itself a permanent majority.
Limited government supporters within the GOP should be alarmed at this tendency. Nothing in politics is permanent except the drive for more federal power. True conservatives shouldn’t be in the business of greasing the tracks.