Having It Both Ways

Here is a pretty typical piece of sophistry from The Nation: Filibustering the Truth

Myth 1: Judicial filibusters are unconstitutional. Frist and other Republicans adamantly argue that efforts to challenge Bush's judicial nominees via filibuster are unconstitutional. This past November Frist said, "After much debate and compromise, the Framers concluded that the President should have the power to appoint. And the Senate should confirm or reject appointments by a simple majority vote. This is 'advice and consent.'"

Frist and company love talking about the Constitution and what the Framers intended. But they should get their facts straight. There is nothing in the Constitution requiring the Senate to "confirm or reject appointments by a simple majority vote." The Appointments Clause of the Constitution requires the consent of the Senate before judicial nominees are appointed. The Rules of Proceedings Clause gives the Senate the power to determine the method of consent. It doesn't matter how many times Frist says it: There is no requirement for the Senate to confirm or reject a nomination. No vote means no consent: And that's OK.

I'll grant every single sentence above, but where would that get Democrats? Exactly nowhere. Just as there is nothing in the Constitution "requiring the Senate to confirm or reject appointments by a simple majority vote," there is also nothing in the Constitution that prohibits the Republicans changing the procedure to stop the filibusters from happening in the first place. There is no requirement that any given group of Senators must be given the chance to filibuster whenever they feel like it. By the very rules of parliamentary procedure the majority run the show: And that's OK.

In fact, Paez was only one of at least six filibusters Republicans attempted during the Clinton years. Senator Orrin Hatch and others argue that these filibusters don't count because they ultimately weren't successful in blocking the nominees. All that proves, however, is that Clinton's nominees were moderate enough to secure sixty votes. It also suggests the remedy to Bush's problem: Stop nominating extremist judges to the federal bench.

Here I will just point out that logically this needn't be true. Given this situation it is as logical to assume that it is the minority blocking the nomination that is extremist. In fact, given that the nominations are supported by a majority opinion in the Senate, it would seem more likely that it is the minority opinion that is extremist. At least in the realm of logic this is so.

In reality, given that the positions of the Senators in these cases are determined not by an appraisal of the merits of the nominees involved, but by the political party affiliation of each Senator, it is safer to conclude that each side is being "extremist." I would be forced to ask the authors, why are Democratic extremists to be preferred to Republican extremists?