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May 20, 2005
Filibustering Judges... a political mistake
As we wind up towards one of the biggest Senate confrontations since Clinton’s impeachment trial, there’s quite a bit of editorializing, blogging, and general wind-bagging about the rightness, precedence, and constitutionality of Democratic senators’ promise to filibuster some of Bush’s judicial nominees. I’ve considered joining the fray and pointing out massive flaws and specious lies in the arguments of both sides, but thre's enough of that going on already. Instead, I’m just going to put forth a cynical argument that this strategy is a political mistake, and that those senators, experts in politics, should recognize this. (For the record, I’m generally in favor of the notion that nominees for judges, ambassadors, cabinet positions, etc. deserve a timely debate and up/down vote in the Senate.)
It looks like the “nuclear option” is a real possibility, so there’s a good chance that despite all of the Democrats’ promises of obstinacy, these judges are going to be confirmed anyway. The price they will have paid is to lose the power of the filibuster, probably forever. All they will have succeeded at is to raise the level of partisan ire in Washington even further. There’s an ex-senator named Daschle who can advise the senior senators on the wisdom of that tactic.
Instead, I think they should just bite the bullet and schedule a long, solid debate on each of these judges. Get up to that podium and pound on the issues that trouble them, rail against the rulings that they oppose, and then when the time comes, vote against the nominees, and let them pass with a majority vote. They can still stand up and claim to be the principled minority, the civil objectors, without being labeled as the unruly obstructionists.
Then just sit back and wait. If these judges are truly as bad as these senators claim, then an objectionable ruling on abortion, civil rights, etc. is bound to come soon enough. When that happens, they should latch onto those rulings and publicize them in every stump speech, in every campaign mailing, and yes, in every future judicial confirmation debate. To gauge how effective that could be, just look at how much political energy the Republicans were able to generate from just a few rulings promoting gay marriage, and most of those were in state courts, not even at the federal level. If they could get a ruling that looked like even a partial reversal of Roe or Brown, they could turn that into a party revival that could sweep them back into power in the Senate. It would be the reversal of the 2004 gay marriage voter surge. And any such judicial sacrifice would likely be short-lived. If these judges and their potential rulings are so far out of the judicial mainstream, they would be unlikely to survive a full-circuit or Supreme Court review. And further, if these judges are the neo-Nazi’s they imply, then a Democrat Congress could impeach them and throw them off the bench. (At least, there are some Republicans who thinks that’s a realistic stick for intimidating liberal judges.)
In reality though, I don’t think any of these judges are likely to provide such a ruling because in reality, I don’t think they’re that bad. I doubt the senators really think so either. In which case, this is a doubly bad mistake because not only will they have failed to achieve a victory but they will have made themselves appear irrelevant and obstructionist.
I suspect, instead, their current strategy it to achieve some kind of victory, no matter now small, to retain some voice in the Senate, and failing that, to become martyrs. I think that’s a bad idea. Voters want more from their politicians than a skill for saying “no” and throwing tantrums.
Politics by Dan at May 20, 2005 11:51 AM