I've written in the past that the upcoming battles on the President's judicial nominations mostly intrigue me as a piece of great poltical theater. At least potentially so. The lead-up is proving fascinating. One of the twists and turns I was not really expecting was the Democrats sudden nostalgia for the filibuster. This surprised me because of the inherent conservative nature of the procedure. It is a tool of the reactionary and those inthralled with the status quo.
What has also been interesting is the attraction that Frank Capra's classic film Mr. Smith Goes To Washington still invites after almost 70 years. In part this is because this is the only well known depiction of a filibuster in the entire history of popular mass media. There are no docudramas out there depicting an actual historical example of a filibuster, largely because as actually used they have proved far less heroic. In fact it is a seedy little practice.
But Capra's portrayal still carries a great emotional impact. In many ways the filibuster in Mr. Smith is a classic immigrant fantasia. It is the iconic ideal that in America a single person can stand up to the entire world. Often times the immigrant has left their homeland because all of the pressures of that society threatened to crush them. It isn't that those types of pressures do not exist in America, as Jimmy Stewart's character could tell you, but it is that the political ethos of this country allows just enough space for a single man to hold his ground and, just maybe, win against all odds. Someone with the sensibilities of an immigrant, such as Capra, would naturally gravitate to stories that portray just those moments and wrap them up in a patriotic fervor. The total effect is warm, comforting, uplifting, and, (sadly) totally irrelevant to the political discussion of today.
The truth is the filibuster portrayed in the movie bears no resemblance to its modern incarnation. It actually isn't a filibuster at all anymore. Other business continues as if nothing is happening. Those engaging in the "filibuster" are not kept on the Senate floor. (That would presumably keep the Senators from pricey coktail parties in Georgetown, and nobody would want that...at least nobody sitting in Congress.) A real filibuster, like portrayed in the film, is a dicey propostion. To decide on that course of action one had to weigh how it would be viewed by the public at large. You would be stopping the entire legislative process and could be vilified for that, but maybe the risk would be worth it if you could just get enough attention focused on your issue. Maybe with the benefit of the spotlight you could sway public opinion in your favor. It was risky, but honest.
Today, the "filibuster" is merely a dishonestly labled minority veto.
In the L.A. Times Jonathan Chait makes the following observations:
The liberal judicial lobbying group, Alliance for Justice, has tried to portray the filibuster as a "free speech" issue. It has even created a cartoon character, "Phil A. Buster," a cute, anthropomorphic megaphone. The free speech emphasis may be shrewd, but it's bunk. Filibusters, it's true, classically consist of endless speechifying to postpone a vote. But the "speeches" often consisted of reading from phone books or other arcana unrelated to the issue at hand. Anyway, everybody knows the real power of a filibuster is not to speechify but to force the majority to come up with 60 votes.
Conservatives, for their part, have argued that filibustering judicial nominations is unprecedented. Therefore, they say, their plan to stop judicial filibusters merely stops Democrats from doing something new. In fact, judicial filibusters have happened before, albeit infrequently. Republicans led a filibuster of a nomination for Supreme Court chief justice in 1968.
Conservatives have since resorted to even more exotic justifications. Clint Bolick of the pro-GOP Committee for Justice wrote in a recent memo, "The Constitution grants the executive primary power over judicial appointments while granting the Senate, as a body — not partisan factions within it — a check via majority vote. By altering that standard, the Senate Democrats are, in effect, arrogating power to the Senate from the executive."
But Bolick and his fellow conservatives didn't see any constitutional problem in the 1990s, when the GOP bottled up President Clinton's judicial nominees to keep them from coming to a vote.
So both sides are obviously disingenuous.
Trite but true. On any specific issue either political party will be looking to do what is immediately advantageous. The arguments made by both parties are generally pretty bad on their best day. The arguments put forward in the "filibuster" debate have been damn near laughable.
The main question is: Are filibusters a good idea? The best argument for the filibuster is that it gives rights to political minorities and forces consensus. The best argument against it is that it thwarts democratic accountability. The majority should be able to enact its program so the voters can see if they like the results.
I find the latter view persuasive.
To this point, Chait has followed the logic of the argument very well. However, he cannot resist the pull of being a partisan hack.
Note, though, that although this rationale works well with normal legislation and appointments, it doesn't really apply to judicial nominations. If the public doesn't like the way a judge rules, we're still stuck with him for the rest of his life. Yet Republicans only want to ditch the filibuster for judicial nominations. They would leave it in place for everything else.
*sigh* So the position of the Democrats is wrong except, magically, in this single case? When people vote for Presidents and for their members of Congress are they unaware of the judicial nominating and confirming powers? Isn't that part of the reason why people are voting for this or that party? Maybe you don't like the way our Constitution devises judicial appointment process? If so, I suggest you get working on that Constitutional amendment right away. Don't rely on a procedural minority veto power. For starters it won't generate consensus, but will in fact lead to a greater polarization. Secondly, it is thoroughly un-democratic and reactionary. Lastly, it is intellectually bankrupt.
However, there is another option. How about restoring the filibuster to the way it used to be? I'd be all for that. You filibuster, you pay the price. Either you win big or you crash in flames. No more of this "veto" on the cheap stuff. Finally, there would be a good reason to watch C-Span instead of looking to see if there is a Capra film over on AMC.
Check out this lengthy round-up over at The Moderate Voice. Some interesting stuff, but you can see the less pretty side of the blogosphere rising up with the all-too-familiar shrill hysterics. On the plus side some of those can be pretty funny, intentionally or not.