Senate Republicans apparently thought their threat to escalate the fight over the filibuster to include Supreme Court Justices once they were in a position to do so would be enough to make Democrats pause, or at least consider another “gang” deal like the ones that failed to make much difference earlier in the year. They were wrong. So now we’ll begin hearing that Democrats will soon deeply regret their action once Republicans retake the Senate and the White House and start stacking the federal judiciary with Federalist Society members.
Sorry, but I don’t buy it. For one thing, it was a foregone conclusion that Republicans would “go nuclear”—certainly over judges, and maybe over everything—if and when they were back in power. I mean, seriously, does anyone think that after forty years of promises to the Christian Right the GOP is going to be able to deny its “base” the fifth sure Supreme Court vote (perhaps) necessary to overturn Roe v. Wade? Over a Senate rule? No way. The judicial filibuster power was doomed anyway, and all it served to do at present was as a temporary instrument for GOP power that would be exercised by any means available.
Beyond that, I have to say I prefer bad government to dysfunctional government. Perhaps without the fallback measure of the filibuster, the shape of the Supreme Court and of constitutional protections can become an open instead of a submerged issue in Senate and presidential elections. And if the nuclear option is eventually extended to legislative filibusters, perhaps we’ll obtain more coherent policies, and more accountable government, regardless of who wins elections.
As Ezra Klein reminds us today, the filibuster was not part of the Founders’ Design, wasn’t used for many decades, and then wasn’t used more than occasionally for many decades after that. The recent frequency of filibusters was making a mockery of democracy. It had to end:
Today, the political system changed its rules to work more smoothly in an age of sharply polarized parties. If American politics is to avoid collapsing into complete dysfunction in the years to come, more changes like this one will likely be needed.
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