Editore"s Note
Tilting at Windmills

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May 21, 2005
By: Kevin Drum

NUCLEAR CHICKEN....In a wonderful display of analytical obtuseness, Juan Non-Volokh argues today that there's obstruction and then there's obstruction. Blocking judges via judicial filibusters, he says, is a quite different thing from blocking judges via traditional blue slips or through the majority exercising its legitimate control of the Senate calendar.

Quite so. The part he misses is that regardless of what you think of blue slips, Republicans were delighted to use them when Bill Clinton was the one nominating judges, but then suddenly reversed course and ended the blue slip tradition as soon as their own guy was in office. Ditto for "Rule IV," another way that the minority had long been allowed to influence judicial nominations until the Republican party decided to do away with it last year. And ditto again for "up or down votes on all judges," a decidedly newfound rallying cry among Republicans. You can find more details on this tawdry and cynical manipulation of the rules here and here.

The judicial filibuster is indeed an obstruction of last resort. But I'll repeat a deal I've suggested several times over the past couple of years, most recently in January: return all the other rules to the state they were in when Bill Clinton was president and Democrats would probably be willing to forego use of the filibuster. Republicans have no one but themselves to blame for the current game of nuclear chicken they find themselves in.

UPDATE: In comments, JNV says he did indeed acknowledge Republican changes to the blue slip rule. I don't really think that his passing reference does justice to what Republicans have done, but he has a point. In any case, you can follow the link and decide for yourself.

My broader point is that the real issue in the filibuster fight isn't the filibuster itself or blue slips or Rule IV or any other specific rule it's the general principle that rules shouldn't be cynically changed en masse just because your guy is in power and you've decided they're no longer convenient. As it happens, I'm not much of a fan of filibusters myself: their history has mostly been anti-liberal, and in principle I think majorities should be able to pass legislation if they can muster the votes. However, the rules shouldn't change midstream. If Republicans and Democrats could agree on a broad set of rule changes that eliminated the filibuster but didn't take effect until 2009, I'd support it. That's fair, since no one knows which party will be in control then. I'll take my chances that the Dems will win in 2008 and the rule changes will work in my favor.

Kevin Drum 12:52 PM Permalink | Trackbacks

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