In the spring of 2005, President George W. Bush had just won reelection, and Roveian triumphalism was in the air. Miffed by the Democrats’ refusal to allow a confirmation vote on some of Bush’s judicial picks, key Republican senators came close to banning filibusters of judicial nominees.
Their weapon of choice, the “nuclear option” of the issue, was a procedural gambit by which Senate Republicans could, with the assistance of Vice President Richard Cheney sitting as the Senate’s presiding officer, get rid of judicial filibusters with a simple majority, rather than the supermajority Senate rules normally require.
As some of us pointed out at the time, the same gimmick could be used by a future Democratic majority to get rid of the legislative filibuster, and the precedent the GOP wanted to set would make that far easier for the Democrats to achieve.
If you think the federal government is neither bold enough, nor big enough — if you think America suffers from too little legislation — then you’d probably welcome such a move. But for the rest of us, nuking the filibuster would be a disaster.
Unlike modern liberals, our Constitution’s framers thought “gridlock” was good, and that it should be hard to get big things done. That’s the main reason they split the legislature into two bodies.
The Senate, with its longer term of service, was meant to curb what James Madison described as “the facility and excess of lawmaking;” it was, in George Washington’s metaphor, the saucer that cools the coffee the House has prepared.
The filibuster isn’t part of the Constitution, but it buttresses constitutional values by checking excess lawmaking. And given the erosion of formal constitutional checks on legislative power, it’s more important now than it’s ever been.
When Republicans controlled the Senate, the GOP spared no scorn for the judicial filibuster. But in the era of the emerging Republican minority, GOP senators will be glad they still have it.
Last week, 41 Republican senators jointly signed a letter to the president, expressing concern over his approach to judicial picks. They have good reason to worry: Obama has stated that “the depth and breadth of one’s empathy,” rather than fidelity to the law, will be his key criteria for choosing judges.
But Sen. Jon Kyl, R‑AZ, as staunch a Republican as you’ll find, has argued that using the judicial filibuster against a Democratic president would be rank political opportunism, and no principled person would even contemplate it.
In the midst of the battle over the nuclear option, he said “My friends argue that Republicans may want to filibuster a future Democratic president’s nominees.… But I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned.”
That was 2005’s Jon Kyl, however. In 2008, Kyl waited all of two days after Barack Obama’s election before issuing a judicial filibuster threat at a Federalist Society event. Kyl’s shift should come as no surprise: In this town, hypocrisy’s as common as hot air.
But those who want smaller government should take a longer view when it comes to the filibuster, which is an essentially conservative instrument for checking majority tyranny and slowing government growth.
Let’s hope Republicans remember that if they’re ever in the majority again.
