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Columnist George F. Will has just come out with another piece about filibusters of judicial nominations. He's written a lot of great stuff over the years, but not this time. His first piece on this subject was excellent, but then he flipped, and now he has flopped.

On February 27, 2003 Will's first column on this subject ("Unconstitutional Filibuster") recognized the continuing dangerous and unacceptable situation in the U.S. Senate:

If Senate rules, exploited by an anticonstitutional minority, are allowed to trump the Constitution's text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president's power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election.

But then Mr. Will had a change of mind. On December 6, 2004 he advocated a different approach in his column titled "Shock and Awe In the Senate":

The president should renominate all 10 appellate-court nominees who have been filibustered, and he should vow, like General Grant, to "fight it out on this line, if it takes all summer." Norman Ornstein, a student of these things, says Senate Republicans could force Democrats to conduct the kind of filibuster Southern Democrats conducted against civil-rights legislation in the 1950s---talking around the clock, the obstructionists and their opponents sleeping on cots in the Capitol, the Senate paralyzed. There has never been such a spectacle in the era of C-Span and saturation journalism on cable 24 hours a day.

That was the flip, and now for the flop. On March 20, 2005 Mr. Will has a column titled "Why Filibusters Should Be Allowed". No more talk about violating two centuries of practice, or nullifying the president's power. No more talk about supporting people who have been renominated, or forcing filibusters around the clock. Unlike General Grant, George Will is now sprinting from the front lines. Here's some of Mr. Will's latest (with a few of my comments inserted in brackets):

Some conservatives say the Constitution's framers "knew what supermajorities they wanted" -- the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress "may determine the rules of its proceedings." [And what do those Rules say? Rule 31, Section 3 says, "When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration...." It stands this rule on its head to say that a supermajority can be required for confirmation.]

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The filibuster registers intensity, enabling intense minorities to slow or stop government. [Yes, filibusters of legislation do allow a minority to protect the status quo by keeping the law as it is, but in sharp contrast filibusters of judicial nominations allow a minority to force changes in the status quo by demanding judges who will do their bidding.]

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The crucial, albeit unwritten, rule regarding judicial nominees was changed forever 18 years ago by the Robert Bork confirmation fight: Now both sides in the Senate feel free to judge and accept or reject nominees on the basis of their judicial philosophies. [Ruth Ginsburg and Steven Breyer were accepted by Republicans DESPITE their judicial philosophies. Perhaps Mr. Will could also acknowledge that another crucial change is now underway: the Democratic minority is attempting to not only reject nominees based on philosophy, but also reject them against the will of the clear majority of Senators. That's the new tradition that Mr. Will is now liberally urging upon us.]

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The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage? [The GOP has never used a filibuster to defeat a judicial nomination having clear majority support in the Senate. Is that what Mr. Will is urging the GOP to start doing? If such a scenario as he describes were to transpire, the GOP could take great comfort in the fact that it takes more than one Supreme Court Justice to strike down a statute, and great comfort in the fact that such a decision would be reversed after voters elect a GOP president and Senate. Moreover, such a scenario cannot possibly occur if perpetual nomination filibusters are stopped now rather than later.]

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And pruning the filibuster in the name of majority rule would sharpen the shears that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations -- and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal? [This is nonsense. The Panama Canal Treaty was approved by 2/3 of the Senate as all treaties must be, and that is a far greater number of Senators than the number required to end a filibuster (and keep in mind that the exact same 2/3 of Senators present can change the Senate rules however it likes). And, what's so important about being able to filibuster non-judicial nominations? It's only succeeded twice (for a Surgeon General and for an ambassador). Does Mr. Will think it would be fine and dandy if Dick Cheney retires, and then George Bush nominates a replacement, and then 42 Senators representing the least populous states demand a different nominee? Those 42 Senators represent less than 12% of the population of the United States.]

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Exempting judicial nominations from filibusters would enlarge presidential power. [Again this is nonsense. It would prevent presidential power from being diminished, as Mr. Will wrote in his previous columns. How would it enlarge presidential power to allow presidents to keep on doing what they have been doing for more than two centuries? Does Mr. Will seriously believe that presidents from Washington to Lincoln to Roosevelt dealt with nomination filibusters? Mr. Will is simply not being factual.]

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No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters. [Might. Even if that were a certainty, the main issue here is a long-term question about the structure of our government. Do we want to dramatically reduce the pool of candidates who will ever serve on the Supreme Court? No more Thomases, no more Scalias, only people who satisfy 60 Senators need apply. Consider that such people might not even exist. If 45 Senators have position X on an issue, and 55 Senators have position Y, and all of the Senators insist on knowing the position of the nominee, then no nominee can possibly pass muster.]

Mr. Will was on the right track, before he flip-flopped.