Posted by Jim Lindgren: Can we trust the Senators to live up to THE DEAL?-- http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1116976917
I share the common ambivalence to the new deal on filibusters. Before the filibuster deal, I thought that some of the pro-Bush defenders of the filibuster were being unrealistic. The assumption seemed to be that, if Bush nominated a moderate or just an ordinary conservative for the Supreme Court, then there wouldn�t be a filibuster, but if he appointed an extremist, then there would be. Further, the thinking went that, if the Democrats in the Senate filibustered anyone but an extremist, they would pay for it with the public. Since my politics are well to the left of anyone Bush would seriously consider for the Supreme Court, that scenario would be an attractive prospect to me -- if it were true. But -- before THE DEAL -- I thought that anyone that Bush could appoint would be filibustered, no matter how moderate. He or she could be a decent, reserved, open-minded, unprejudiced, intelligent conservative such as Judge Michael McConnell. Or he could even be a judge who was pro-affirmative action and (in his opinions, at least) pro-abortion such as Alberto Gonzales. Indeed, a high staffer with one of the major public interest groups that the Democrats rely on to evaluate judicial candidates told me to expect an attempt to filibuster Gonzales if he is appointed to the Court, even though she admitted that Gonzales was more liberal than anyone else that Bush could conceivably appoint. In other words, I expected that if Bush appointed someone closer to the political center than Clinton�s nomination of Ruth Bader Ginsburg, that nominee would nonetheless be filibustered as an extremist. (By the way, McConnell in particular would seem to be an almost ideal candidate for Chief Justice, with a calm, responsible, principled manner that should smooth over ideological differences on the Court. According to those who know John Roberts, he would be another.) Further, once the TV ads would start running portraying Bush�s nominee as not only extreme, but also mean and corrupt, it would be the Republicans who would be under fire for supporting him or her, not the Democrats. And, unlike a political campaign, the nominee would be discouraged from making the rounds of talk shows to campaign for the office. (Imagine in the last election if we had only pro-Bush or only pro-Kerry ads! Getting a supermajority of 60% in Congress is difficult if you can�t get even get a majority of the public first.) Of course, before THE DEAL, a Republican could still support the right to filibuster nominees without believing that Democratic senators would filibuster only an extremist, but I thought the factual basis of some principled pro-filibuster advocates (that a filibuster was not inevitable) was wrong, especially once a public smear campaign was in full force against any nominee that Bush put forward. (Of course, the strongest argument against repealing the 60-vote cloture rule is that the Senate�s rules themselves require a supermajority to change them -- whether that rule must be followed if it obstructs the obligation to �advise and consent� is a closer question.) So how does THE DEAL change all this? I don�t know, but it might. I no longer view a filibuster as a near certainty; it depends on the honesty and courage of the Democratic signatories. If THE DEAL merely postpones a showdown until Bush nominates a new justice for the Supreme Court, then it is a big mistake for Republicans. It all depends on what �extraordinary circumstances� means. If the threshold is that Bush has nominated someone that People for the American Way and the Alliance for Justice say is an extremist, someone whom we are told is WAY OUT OF THE POLITICAL MAINSTREAM, then we can be virtually certain that the Democrats will have the �extraordinary circumstances� that they need to filibuster anyone Bush would appoint to the Supreme Court. Yet almost any judge that Bush would propose for the Court would probably be closer to the political center than the typical activist at People for the American Way or the Alliance for Justice. But if the Democratic senators signing THE DEAL will really agree to cut off a filibuster if Bush nominates someone like most of the names that have been floated so far, then THE DEAL will have accomplished its purpose. The 7 Democrats are saying in effect: �Trust us. If you won�t abolish the filibuster, we can stand up to the demagoguery coming from our friends and allies on particular nominees for the federal courts.� If those Democratic senators break their promises and give in to the pressure to filibuster ordinary conservatives, they may not pay a price with their constituents (the smear campaign will give them cover), but commentators, press pundits, bloggers, and fellow senators -- indeed, most of us in the intellectual chattering class -- will know that the solemn word of these men and women can�t be trusted. And the senators themselves will have to look themselves in the mirror every morning. For all of our sakes, let�s hope they value clear consciences. (Yes, I know that Harry Byrd is a signatory, but I will leave his personal characteristics aside in this post, trying to focus mainly on the other 6 Democrats.) Based on recent behavior in the Senate, I�m pessimistic, but not entirely devoid of hope. By the way, the 7 Democratic senators are Harry Byrd, Daniel Inouye, Mary Landrieu, Joseph Lieberman, Ben Nelson, Mark Pryor, and Ken Salazar. The 7 Republican senators are Lincoln Chafee, Susan Collins, Mike DeWine, Lindsey Graham, John McCain, Olympia Snowe, and John Warner. _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
