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

Columnist George Will spoke today at a conference co-sponsored by the Federalist Society and the Heritage Foundation, regarding the situation with nomination filibusters. He is an intelligent person, and he made some excellent points. However, it would be "premature," he says, to report that he supports shutting down nomination filibusters. Although Mr. Will's arguments are interesting, they do not withstand careful scrutiny.

Among other things, Mr. Will is concerned about a slippery slope that may lead to elimination of legislative filibusters. But, one could just as easily argue that the Dems have now put us on a slippery slope leading to a new minority veto of Supreme Court nominees (and perhaps of cabinet nominees too, as well as a minority veto of vice presidential nominees by dint of the 25th Amendment). It's noteworthy that less than 12% of the American population is represented by 42 senators, so the slippery slope we are on is very slippery indeed.

The point that Mr. Will is most passionate about, however, is that in our system of government the filibuster allows an intense minority to be heard and be respected. But this is a grave oversimplification on Mr. Will's part.

If a minority of 41 senators is intensely opposed to legislation, then they can filibuster the legislation and defeat it, thereby preserving the status quo. But, if a minority of 41 senators is intensely in favor of legislation, it doesn't matter in our system of government. Thus, the legislative filibuster is designed to only respect intense support for the status quo, rather than intense opposition against the status quo.

Compare perpetual filibusters of judicial nominations. This new device allows an intense minority of 41 senators to demand judges who will legislate from the bench (or uphold previous legislation from the bench), and thereby change the legitimate status quo. A supermajority of 60 senators would thus be required in order to protect the status quo. This is the exact opposite of how the legislative filibuster works. He's comparing apples and oranges.

Mr. Will does rightly observe that some of the constitutional arguments made against nomination filibusters are somewhat less than persuasive. However, very few scholars disagree with the notion that a simple majority of the Senate has power to reinterpret the Senate rules, as it has in the past.

Mr. Will is also concerned about expanding the powers of the presidency. Actually, what the Democratic minority has recently done is an attempt to reduce the powers of the presidency, and Mr. Will should not be worried about restoring things to the status quo. No one here is trying to set up a dictatorship or a rubberstamp. The Senate is full of strong-willed Republicans who can stand up to the President if he makes some ridiculous nomination. Senators like McCain, Dole, Snowe, Warner, Chafee and the rest are not pushovers.