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

At National Review's "The Corner," Ramesh Ponnuru explains why he does not support the nuclear/constitutional/Byrd option:

The reason I'm not for a formal restriction on judicial filibusters is not that I'm pessimistic about what the Democrats will do in retaliation. It's that I'm optimistic about the politics of a Supreme Court nomination. I think, first, that Bush is likely to nominate a conservative rather than to pre-empt the liberal filibusterers by nominating a squish. I think, second, that a Democratic attempt to filibuster a nominee to the Supreme Court will go down very badly with the public. Democrats have already paid a price for filibustering appeals-court nominees, and I suspect that they will pay a higher one when it comes to the Supreme Court (since more people will be paying attention). Finally, I think we'll be in a better position to appoint conservative judges in the future if the Democratic filibuster fails in a high-profile fight and is seen to inflict damage on the party than if Republicans make a procedural change that prevents a Democratic filibuster from failing and being seen to fail.

This line of reasoning seems odd to me. On the one hand Mr. Ponnuru argues that filibustering judicial nominees should be accepted as a legitimate tactic, while on the other hand he expects that for some reason people should remain outraged by that tactic. I don't understand. Fortunately, a majority of the Senate seems to have a different attitude than National Review's. For example, see Senator Cornyn's letter in the March 10 NY Times.

If the profound new precedents of the last couple years are allowed to stand, then henceforth it will become routine for a Senate minority to reject whatever nominees they don't like. That includes Supreme Court nominees, lower court nominees, cabinet nominees, and even vice presidential nominees (e.g. both Ford and Rockefeller had to be approved by the Senate).

Even if people like Ponnuru see no constitutional issue with perpetual nomination filibusters, why is it wise to transfer such a huge amount of power to a minority? And why is it reasonable to expect that the Senate minority won't use that power, once it has been legitimized, to reject whatever nominees they dislike? Likewise, why is it reasonable to expect that the public would be upset when the Senate minority uses its legitimate powers, particularly given that filibusters no longer involve showy spectacles that disrupt the operations of the Senate? Surely National Review doesn't want the president to select judicial nominees based upon extortion by a Senate minority. But that is the road we are on.

If the recent precedents stand, then the pool of possible candidates for the supreme and lower courts will shrink dramatically. The fluctuation of judicial philosophies on the Supreme Court will come to a screeching halt, and so judicial precedents will not have to survive the wide-ranging scrutiny that they have in the past. There will be no more Justice Thomases or Scalias, not to mention other renowned but controversial Supreme Court justices. The influence of the executive branch on the nomination process will shrink rapidly, as the influence of the Senate minority swells.

I just don't see how National Review can sit back and let all that happen, without even really giving any good reason for why perpetual judicial filibusters are so important. Even PFAW recognizes that, if the appeals court renominees are filibustered, and the effort to defeat those filibusters fails, then the Senate minority will have clear sailing to influence the subsequent Supreme Court nominations. Why that is not apparent to National Review mystifies me. If by some miracle the Supreme Court remains immune from perpetual filibusters (the Fortas debate having lasted all of four days), still most Supreme Court Justices previously served as appeals court judges.

Finally, the point that baffles me the most is why people who see no constitutional problem with perpetual nomination filibusters also see no inconsistency with the Senate rules. Clearly, if the Democratic minority prevails in this crisis, then it will be able to reject whatever appellate court nominees it pleases. In other words, if they don't like a nominee, then the nomination will be forced to expire. Yet, Senate Rule 31 explicitly says that "when a nomination is confirmed . . . . or rejected by the Senate" then there must be "voting in the majority." Very simple.