The controversy over the filibuster of judges is far more difficult for Conservatives than it is for modern Liberals. After four years of whining, complaints, grumbling, and protests about the Constitutionally-mandated Electoral College, the present Democratic feigned devotion to the judicial filibuster and the rights of political minorities is too transparently disingenuous to even be hypocritical. It is a totally insincere and manufactured self-righteousness marshaled in the service of patent political pragmatism.
Conservatives are congenitally suspicious of transient majorities and favor slower and more deliberative processes. Conservatives believe that large changes are best accompanied by clear rather than narrow majorities. When we have narrow majorities little happens and this is generally good. This disposition is what animates the reluctance to challenge the filibuster from Conservatives like George F. Will.
Honest people or those whose minds are not sealed shut with the cement of political partisanship acknowledge that the use of the filibuster to block judges, that would otherwise win a majority vote on the floor of the Senate, is unprecedented. However, the filibuster can play a salutary legislative role. Since Democrats in the Senate have raised the stakes by using the filibuster, some Conservatives are fearful that if Republicans use their majority to change filibuster rules with regard to judicial nominees, it will serve as precedent for future Democratic majorities to eliminate the legislative filibuster.
The entire political fight between the Republicans and the Democrats reflects the present disposition of Republicans to regard themselves as a minority party in temporary control and the Democrats to believe that they are really the majority party that has fallen into a transient minority position. Republicans, especially older ones have the soul of a minority party. As a consequence, they are inherently reticent about circumscribing the rights of legislative minorities. Democrats by contrast are pushing for minority rights now, but will little compunction about eliminating them when they return to a legislative majority.
We already know this will be Democratic behavior. Democrats, sometimes with Republican help, are the party that chiseled away at filibuster rules in the past, from the point where one Senator could stop the Senate, to requiring a 33% minority, and eventually a 40% minority. It is not hard to see that if Democrats are stymied in the future by a persistent legislative minority, they will trim the power of the filibuster even further.
At this point, the Democrats have, in effect, altered tradition by insisting upon a supermajority of 60% for judicial appointments. Republicans have a choice: they can accept this new requirement or fight it. When Democrats come to power, they will not have to face these same limitations for two reasons. First, Republicans have never used the filibuster to stop the nomination of someone who would be confirmed by the full Senate. Even if Republicans follow the new precedent established by their Democratic colleagues, Democrats will have few qualms about using their majority position to change the rules back again. If over 200 years of tradition and precedent could not compel a more collegial approach to judicial nominations, it is doubtful that even a dedicated and disciplined Republican minority could stand in their way.
Ask yourself why Democrats, as a minority in the Senate, would risk the legislative filibuster by the unprecedented extension of the filibuster to judicial nominees. They see little down side. If Republicans allow the judicial filibuster, they can block BushÂ’s choices without calling a single vote on the Senate floor. They, in effect, negate the prerogatives of the President and the choice of the people in the last election. When they become a majority party they will simply change the rules again on their own behalf.
Though many Republicans do not realize it, there is now really little risk for Republicans in voting down the judicial filibuster. Whether Republicans restrain themselves or limit the judicial filibuster, Democrats can be depended upon to not exercise restraint in the future. Republicans should act like a majority party now, while they have the opportunity. The Democrats certainly will.