The Plank

Distinguishing Judicial and Legislative Filibusters

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In response to Ezra Klein's high-profile campaign to encourage an assault on the filibuster, and the invidious development of a de facto 60-vote requirement for passage of legislation in the Senate, the estimable conservative reporter Byron York comes up with a clever but wrong-headed rationalization for past GOP efforts to kill Democratic filibusters against the Bush administration's judicial nominees.  Republicans were not, claims York, endorsing a general end to the right of a minority to obstruct legislation via filibusters:

The argument was that the judicial filibuster undermined the Senate's constitutional responsibility to give advice and consent on the president's judicial nominations. When legislation is filibustered, it's possible for a bill's sponsors to make changes that will satisfy opponents. But what happens when a nominee is filibustered? No advice and consent. The Constitution does not require the Senate to pass a national health care bill, but it does require it to confirm or deny the president's appointees.

This is sophistry.  For one thing, Democrats blocking judicial nominations were indeed looking for a "deal" that would have changed procedures for selection, appointment and confirmation of federal judges, not just seeking to block action on particular nominees.  For another, it's hardly evident that today's GOP wielders of the filibuster weapon are looking for "changes that will satisfy opponents;" simple obstruction is the explicit goal of most conservatives fighting health care reform.  And beyond that, Republicans are certainly not eschewing procedural roadblocks to Obama's presidential appointments.

But the biggest problem with York's analysis of the "judicial filibuster" issue is that he forgets we are talking about lifetime appointments to the higher regions of the federal bench.  Legislation can be repealed, as Republicans so avidly say they intend to do with health care reform (if it is enacted) at the earliest opportunity.  Barring the exceptionally rare resort to impeachment, federal judges are there as long as they wish. 

Personally, I dislike judicial filibusters as much as any others, and would happily abolish the filibuster entirely.  And there's plenty of hypocrisy to go around when it comes to the "right" of a Senate minority to destroy the ability of the majority to govern.  But if anything, the case for the GOP's social-conservative-driven (and unsuccessful) assault on the judicial filibuster was weaker than the case for killing legislative filibusters today.  

Ed Kilgore is Managing Editor of The Democratic Strategist, and a senior fellow at the Progressive Policy Institute.

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