March 12, 2005

The Filibuster Fight

I haven't said much of anything anywhere on the filibuster discussion, but I'd like to say it. The filibuster is a wonderful thing. The Senate is deliberative and it supposed to protect the minority view - since the majority is not necessarily right. Debate is better than consensus, because debate can illuminate a better answer, or even the right answer. Ultimately consensus is the fairest way the Congress has to settle disputes, but debate is still a critical part of policy-making.

I mean hell, would anybody have watched Mr. Smith Goes to Washington if instead of the dramatic filibuster he issued press releases and hired slimy lawyers to drag it out in the Ethics Committee? The beauty of the filibuster is the same as the Senate itself - it's not supposed to be democratic or majoritarian, it's supposed to make sure every member can express his views on whatever.

Now, a fully separate issue: the courts. I do think that filibuster should be limited, but not eliminated, in its power on this issue. Some nominees end up waiting as long as 18, 21 or 24 months for a vote. Ultimately, they are forced to withdraw. We're making it too difficult for good people to join the federal judiciary. The result is that smarter, more capable people will go elsewhere and we'll be stuck with blander, less qualified people - mostly those jurists that have published little of note or controversy so that there's nothing to make them unpalatable to left or right.

I've been saying for some time that every judicial nominee deserves an up or down vote on the Senate floor. Bork got his; the judiciary committee rejected sending him with a favorable recommendation, they rejected sending him with an unfavorable recommendation and finally they sent him to the floor with no recommendation at all - where he was defeated. They ought to give a yes or no to all the nominees.

I think a few possible reforms might be:
- rules change so that every nominee has to be considered by committee within a certain timeframe, say 6 or 12 months (to accomodate backlog)
- rules change saying filibusters can only last a few days or a week on judicial nominations, after which a vote must be held
- rules change forcing timely consideration of nominees on the floor if the judiciary committee doesn't process them within the timeframe

I really like the filibuster, but I think every judicial nominee has the right to be rejected or accepted in a timely manner. The Senate should accomodate the symbolic power of the filibuster, and the ability to let the minority express its views, with the need of the country, the President and the nominees themselves to get up or down votes on the floor.

Other important issues to consider: the hypocrisy of Republican filibuster opponents or Democratic filibuster supporters and the importance of planning for the future. By the future, I mean the Republicans should consider how they'd feel being in the minority with a weakened filibuster and the Democrats should consider how they'd feel being in the majority with a strong filibuster. And the examples of hypocrisy on the issue have been explained briefly elsewhere.


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