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

Roger Pilon has an interesting piece in the New York Sun about filibusters and checks and balances. Here's part of it:

The filibuster of judicial nominees upsets the balance the framers struck. The Constitution is run through with checks and balances, designed to limit power on one hand, but allow government to go forward on the other. The filibuster intrudes on that design by adding an extra check. But it's not without costs. No doubt today's Democrats think they know better how to strike the right balance than the framers did. Republicans are saying the framers got it right. I'd go with the framers. Let's give these nominees the up-or-down vote they deserve, as plainly contemplated by the Constitution.

Pilon is right that judicial nomination filibusters have profound implications for checks and balances.

Some people disagree that filibusters are related to checks and balances. For example, Poliblogger says, "The. Filibuster. Isn’t. About. Checks. And. Balances." Harry Reid used to feel the same way. However, Pilon is right. It's clear that judicial nomination filibusters make it more difficult for the President to appoint who he wants, and if that's not a "check" then nothing is a "check."

I'm going to prattle on a bit more about checks and balances below the fold, but first want to mention that the Committee For Justice is rightly criticizing Senator Reid for distorting the history of judicial nomination filibusters.

Anyway, getting back to checks and balances, when Congress tried to impeach and convict Supreme Court Justice Samuel Chase, and later tried to impeach and convict President Andrew Johnson, Congress was trying to increase its check on the judiciary and on the executive, respectively. Although acting constitutionally, Congress nevertheless was threatening to upset the system of checks and balances that has worked pretty well for two centuries. The Senate minority is now threatening a very similar disruption.

If the Senate minority succeeds, then the Senate will be poised to over-check the Executive and over-check the Judiciary. The president's ability to alter the course of the courts will be markedly diminished, which would be tragic. It's vital that different presidents be able to appoint judges having their different respective legal philosophies, so that in the long run the only surviving judicial precedents will be the ones that are firmly supported by the objective meaning of our laws. It's vital that a Senate minority not be able to dictate to the president what particular people or particular types of people he must nominate. Likewise, it's vital to the independence of the judiciary that nominees not be forced by a Senate minority to commit to particular positions on issues that may come before them. Judicial nomination filibusters are very much about checks and balances, and those filibusters threaten to over-check and unbalance the other branches of government.