Monday, May 23, 2005

Many people I usually agree with like John Hinderaker and Ed Morissey don’t like the filibuster compromise, to put it mildly, but I still think it beats the alternative. This issue had blow-up-in-your-face-overreach written all over it.

What conservatives should remember is that a lasting Republican majority in Congress is a fairly unusual phenomenon post-Depression. Both previous times the GOP won control of both chambers, they lost them both the very next term. The rise of alternative media like bloggers and talk radio has helped a great deal in creating and maintaining the GOP’s current majority, but this Republican leadership has also helped themselves by being smart enough to build consensus and avoid creating high-visibility contention that the mainstream media can feed off of. I shudder to think of the ad spots (and gleeful MSM play-along) use of the nuclear option would have generated in 2006.

There was another angle to the rules change that also had a large potential downside. If the Democrats did regain control (and it’s going to happen someday, face it righties), that could have resulted in a nightmare scenario for centrists and Republicans: once Republicans set the "precedent" of breaking filibusters by rewriting the rules with 51 votes, majority Democrats who are far less married to tradition and strict constructionism than Republicans could simply argue national health care, for instance, is too important to allow the GOP to block (much more important than mere judges). If you think that’s farfetched, remember: the NYT was advocating the end of the filibuster in 1995. Don’t count on the media to defend the Constitution, at least not from Democrats.

So for the moment Bush gets three of his judges, and it’s not clear whether the Dems must invoke "extraordinary circumstances" to filibuster the others; at least they’ll now have to justify meeting that bar on future nomimees if not current. It’s also not clear whether the GOP is forbidden under the agreement from simply waiting until the next Congress to codify the longstanding tradition of not filibustering judicial nominees. Of course, the real fun will begin when a new Supreme Court Justice is nominated.

UPDATE: Professor Bainbridge raises some of these same points. Glad to see I'm not the only sane person out there on this.

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