On his blog yesterda…

On his blog yesterday, Hugh Hewitt noted a Washington Post article about the Senate’s “nuclear option”; changing the filibuster rules to get Bush’s judicial nominees more easily through the Senate confirmation process, with an eye to potential Supreme Court nominees. Hugh comment is:

Bill Frist’s finger is on the button. Push it, Senator.

My comment would be, “he who lives by the nuke will die by the nuke”. I’m no Sun Tzu, but I see this as a short term tactic that, while it might get the current job done, is a poor long term strategy that could come back to bite us someday. And I don’t think we really want to give up the weapon of the filibuster just yet. The Post article backs me up on both points.

“One way or another, the filibuster of judicial nominees must end,” [Sen. Majority Leader Bill Frist] said in a speech to the Federalist Society last month, labeling the use of filibusters against judicial nominees a “formula for tyranny by the minority.”

Given the turn the culture war has taken–the fear of Christ in Christmas, same-sex marriage by judicial fiat, even going back to when the right to an abortion was “found” in the Constitution–do we really want to lose this tool to keep those kinds of judges out of the system? Democrats have been using it successfully to block conservatives, and now we want to take the ability of Republicans to use it? In the ebb and flow of national politics, in spite of all the talk of the death of liberalism, it’s not dead yet (apologies to Monty Python), and if a Hillary presidency is at all a possibility in the future, I think we’ll need to keep this weapon available instead of removing it entirely. Senator Reid’s blustering does make a point:

“If they, for whatever reason, decide to do this, it’s not only wrong, they will rue the day they did it, because we will do whatever we can do to strike back,” incoming Senate Democratic leader Harry M. Reid (Nev.) said last week. “I know procedures around here. And I know that there will still be Senate business conducted. But I will, for lack of a better word, screw things up.”

(Well, for lack of three better words, I guess.) Actually, while I think Republicans will rue the day, it will come later rather than sooner. For the moment, however, it may not be necessary.

Democrats, however, face several constraints. Democratic strategists said that some of the party’s senators from states Bush carried in the presidential election could be reluctant to support a filibuster for fear of being portrayed as obstructionist — a tactic the GOP used successfully in congressional elections this year and in 2002.

With a Supreme Court nomination, Democrats could be blamed for deadlocking the court at its current four conservatives and four liberals, making it impossible for the court to decide the toughest cases.

In addition to the sway Bush holds over blue senators from red states, this passage also points out the real way these problems should be resolved, and indeed has helped already in resolving this; elections. Not enough votes for ending filibusters? Take your case to the people. In this last election that’s what happened, and look at the results; more Republican senators, and more Democrats who may be willing to go along with the Republicans. And frankly, that’s the proper way to resolve political disputes in our republican system of government. You don’t give the majority, even if it’s “your” majority, more power by changing the rules. You give it to them by changing the minds of the voters.

If Frist doesn’t want tyranny, perhaps he should start by imagining what the rule change would look like from a Republican-minority point of view. I believe that conservative judges would be better ones than liberal judges because in general they’ll stick applying the Constitution and the law rather than creating new laws and rights out of whole cloth as many liberal judges have done. But even though I think that more conservatives judges would mean less judicial tyranny, that doesn’t mean I want to give Democrats this same power when they’re in the majority. Never mind “tyranny of the minority”, this would be the majority doing it to us. Then what could Frist say? Not much.

If filibustering judicial nominees is now fair game according to Democrats, I want it available in the Republican playbook for now. The “nuclear option” would just remove one check on the power of the majority, substituting what amounts to a club with a rifle. If no one has a rifle, we can deal with the other side’s club. But if we take up a rifle, someday we may be at the other end of the barrel.

I think the debate and the checks against power are good for us, even if I think they’re being used against the greater good, because there are remedies that are more in line with a republic. We just saw that remedy in action last month. If we believe in the process, we should let it run its course.

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