Wednesday, April 13, 2005

Filibusters are Bad! No, Good!

The Family Research Council might want to make up its mind.

What's my position, you say? Well, I'm moderately swayed by the Mickey Kaus/Rick Hertzberg school of thought: filibusters are only okay for judicial nominations, not just any old bill. After all, as Hertzberg notes, bills can be repealed, but judges are forever (or at least for life). The stakes are higher. Filibusters force judicial nominations to the center, whereas without them the President has little or no incentive to not pick an ideologue (a problem especially acute when one party controls the whole of government, and outright catastrophic when that party controls the entire government even though it has only a very narrow mandate). Perversely, the branch of government which should be most zealously guarded against radicalization is, in many ways, the most vulnerable to it. Kaus explains that
"you need the filibuster to force...compromise. When the the Senate votes on ordinary legislation, a President usually has to moderate his proposals to please the various factions within his own party even if (or, rather, especially if) that party is the majority party. President Bush's immigration plan has run into opposition from his party's right wing, for example, while his Social Security plan makes many Republican moderates queasy. Neither plan would make it through the Republican Senate intact even if filibusters were outlawed. But when it comes to Supreme Court nominations, the lingering tradition--however misguided--of deference to the president's selection makes radical choices likely to command majority party support when, as now, the president's party controls the Senate. The only way to force a consensus candidate, in that case, is to give the minority party an effective veto by way of the filibuster."

None of these things apply to run of the mill bills and resolutions. From a purely pragmatic perspective, I find Nathan Newman and Matthew Yglesias to be very compelling on how the filibuster is harmful to liberal interests in general. The exception, it seems, is on liberal social issues. Newman and Yglesias make great points about how liberal entitlement programs such as Social Security and Medicare can survive a legislative nuclear war untouched--the sticker being getting them passed. However, on social issues (such as stopping egregious "Defense of Marriage Acts" from passing), I don't think the liberal position is on all that steady ground, without some tools in the toolbox of the minority to back them up. So I'll label myself undecided on the merit of the filibuster for non-judicial bills. In any event, judicial nominations occupy a unique and special place in our constitutional scheme. They require more careful and deliberative debate than do other bills, and should be treated accordingly.

Other great posts on this topic have been made by Legal Fiction and The Decembrist

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