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November 05, 2005


By Neil the Ethical Werewolf

Thanks to Harry Reid’s pwnage of Bill Frist, we’re facing Bush’s most extreme nominee with the filibuster in hand and a credible threat to throw the Senate into chaos if the Republicans go nuclear. I won’t go into the many problems with Strip Search Sammy here. I’ll give the political argument that if it comes down to a question of filibustering or not filibustering, a filibuster we must have.

If we bring Alito down with a filibuster, the next nominee is likely to be more moderate. With his approval ratings in the 30s, Bush can’t hope to keep throwing right-wing nominees into filibusters and then beat us with the obstructionism argument in the 2006 election. He’ll probably meet with Harry Reid and find himself some Reid-approved moderate without Miers’ incompetence issues so that he can get the whole Supreme Court mess off his hands. Depending on how this goes, we may be able to generate another Miers-like fissure in the Republican base.

Mark Schmitt says that “one thing is for sure: the prospect of a "final showdown" in which Alito is confirmed by the Nuclear tactic is just not going to happen in a Senate effectively run by Harry Reid.” Lots of Republicans who have a stake in Senate business moving forward don’t want to blow up the filibuster and face Reid’s Senate-paralyzing retaliation. So if we can get the filibuster going, the Republicans won't stop it. Alito will be defeated, and a more moderate nominee will take his place.

Even if Schmitt is wrong and the Republicans find 50 Senators willing to go nuclear, Reid's retaliation will be awesome enough in itself. More procedural moves like Reid's closed session on WMD intelligence this week that at once tie up Senate business and point to Republican malevolence will be greatly appreciated. Given that in many cases we'll be interrupting some very bad business (like this week's awful budget reconciliation package) more disruption would be something to cheer. Matt Yglesias has argued that liberals are better off long-term with the filibuster destroyed, since it might prevent us from passing nice social programs someday. While the Republicans are, as I understand it, planning only to eliminate judicial filibusters, it's not clear that the impact of a move like this can be contained.

Getting 41 Democrats to stand up and filibuster will, most likely, be the major hurdle. If you’re lucky enough to have a Democratic Senator or even a moderate Republican, it might be time for a phone call or a letter telling them that Strip Search Sammy must be stopped, by any means necessary. Addresses and phone numbers can be found here. With my Pennsylvania registration and cell phone number, I’m going to give Arlen Specter’s office a ring right now. (Sure, he’s not likely to join the filibuster, but we want him on our side.)

November 5, 2005 in The Supreme Court | Permalink


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While I'm not sure Reid could pull off a filibuster, I would say there's no harm in trying. The idea that the Democrats were hurt by their "obstructionism" of Bush's judges is one of those myths created by a subset of conservatives who are obsessed with judges, and therefore think everyone else is obsessed with judges. So for example the myth was created that Tom Daschle lost because he blocked Bush's judges, instead of the actual reasons he lost.

In the real world, the only people who would be outraged at the blocking of a conservative judge are people who would never vote Democratic anyway; and as we've seen from the social security thing, when the Democrats engage in "obstructionism" it actually works to their advantage if they're obstructing something sufficiently unpopular. So they might as well work to block the Republicans from doing something bad; that's pretty much their job at the moment.

Posted by: M.A. | Nov 5, 2005 6:16:18 PM

I mostly agree, MA, and the Daschle point is a nice illustration. The obstructionist charge, I think, only really works as a charge that a Senator is opposing some locally popular president. If the President isn't popular, the charge has no force. I've heard from a Nebraska friend that Ben Nelson maintains fairly high ratings by "supporting the president", pitched in exactly those terms. Wonder if this'll change with Bush's declining popularity.

Posted by: Neil the Ethical Werewolf | Nov 5, 2005 6:40:53 PM

Yeah. I say, block him.

Let me add, though, that while I'm all for seeing the legislative filibuster go the way of the 8-track, the judicial filibuster needs to stay. Judges ought to be centrist, no matter who's in power. They ought to reflect the majority's murky centrist opinions (including love for precedent) in their results, and mainstream legal thought in their reasoning, not exotic rightwing (or leftwing) legal theories about what Madison really meant. Filibusters prevent the judiciary from swinging wildly and permanently to the left and right when one party gets a wee advantage electorally, and weird legal theories from moving out of University of Chicago honours seminars and into the courtroom. Legislation can be undone but judgeships can't.

That's why the judicial filibuster is important and isn't "anti-democratic". And that's why the Dems ought to use it in this case, unless Alito tacks massively to the center in his confirmation hearings. That's why Clinton was right to appoint moderates that Orrin Hatch could stomach to the Supreme Court during the 90s. And that's why Frist and his elected minions would be wrong and very bad conservatives to kill the judicial filibuster to save Alito. Six months ago, I bet they would have done it anyway. But I think Schmidt is right that they won't do so now (though I'm less confident than Neil how well the Dems will fare in the aftermath if they do). So filibuster.

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