Washington With Republicans inclined to change Senate rules to make filibusters of judicial nominees impossible, Democrats have recklessly given Republicans an additional incentive to do so. It is a redundant incentive because Republicans think -- mistakenly -- that they have sufficient constitutional reasons for doing so.
Today 60 Senate votes are required to end a filibuster. There are 55 Republican senators but not five Democrats who will join them. Republicans may seek a ruling from the chair -- Vice President Cheney presiding -- that filibustering judicial nominees is impermissible, a ruling that a simple majority of senators could enforce.
Democrats say they will retaliate by bringing the Senate to a virtual halt -- easily done within Senate rules. Republicans rejoice that such obstructionism would injure the Democrats. But conservatives will come to rue the injury done to their cause by the rule change and by their reasoning to justify it.
Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.
Some conservatives say the Constitution's framers "knew what supermajorities they wanted" -- the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc. -- therefore other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress "may determine the rules of its proceedings."
Some conservatives say there is a "constitutional right" to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.
Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms -- separation of powers, bicameral legislature, etc. The filibuster is one such mechanism -- an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.
The crucial, albeit unwritten, rule regarding judicial nominees was changed forever 18 years ago by the Bork confirmation fight: Now both sides in the Senate feel free to judge and accept or reject nominees on the basis of their judicial philosophies. So, conservatives, think:
The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?
Filibusters have role to play
And pruning the filibuster in the name of majority rule would sharpen a scythe that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations -- and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?
Exempting judicial nominations from filibusters will enlarge presidential power. There has been much enlargement related to national security -- presidential war-making power is now unfettered, Congress' responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?
The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.
It has been 98 years since Republicans have had 60 senators. But in the last 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.
No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.