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By AndrewHyman Posted in Fillibuster — Comments () / Email this page » / Leave a comment »

There's been some interesting discussion recently at the National Review website about whether or not the present filibuster crisis could have been avoided by making judicial nominations a bigger issue in the recent election campaigns (e.g. see here and here). So, I thought I'd toss in my two cents' worth, even though it's water under the bridge.

Kathryn Jean Lopez presented a persuasive argument last summer that the GOP should have made the treatment of judicial nominees a bigger issue (e.g. see her essay "It's the Judges, Stupid"). But, I still think the GOP played the issue just about right.

President Bush, for example, repeatedly blasted activist judges, and repeatedly said that judicial nominees deserve up-or-down votes in the Senate. Should he have focussed attention on particular nominees, as Lopez suggests? I don't think so, for a not-so-big reason and also for a really-big-reason.

The not-so-big reason is that being a nominee has already become enough of a hell without having to be dragged into a national political campaign that would have further politicized the judiciary --- the GOP might well have benefitted from doing that, but it would have been the wrong thing to do. That's the not-so-big reason.

The really-big-reason is that putting Estrada, Pryor, et al. into campaign commercials might have garnered enough Senate votes to defeat the filibusters. The nominees would have been confirmed with 60+ votes, and the new precedent would have been set that perpetually filibustering nominees is okay. It's much better to deal with this thing head-on, and defeat the whole idea that endless filibusters of nominees are acceptable. Such filibusters shouldn't be acceptable, because they give a minority too much power and responsibility, not to mention conflicting with tradition, the Constitution, and/or Senate Rule 31.

Also, unlike Ms. Lopez, I don't think it's really a big deal that Specter is chairing the Judiciary Committee. I may be proved wrong, but it seems that he is committed to moving expeditiously to get the nominees out of committee. He might not do it in the order that we might like, but it will be done. Additionally, giving him the chair honored Specter's seniority, and that may prove worthwhile in terms of whether or not he (as an individual Senator) ultimately supports the idea that filibusters are only legitimate for legislation. It's still unclear where he'll come down on that; he may yet realize that minority rights must not overwhelm the rights of the majority in this area.

UPDATE: There is more recent discussion of this topic here at confirmthem.