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

There are a couple of items of note in the Washington Times today releated to the filibuster. The first is an editorial that uses Senator Byrd's own words and actions against him. Particularly interesting were Byrd's quotes during a 1979 showdown where Byrd threatened a rules change in order to end a legislative filibuster. During the course of debates Byrd summoned the spirit of Thomas Jefferson* in asserting, "This Congress is not obliged to be bound by the dead hand of the past."

Meanwhile, Tod Lindberg pens an op-ed on this proposed compromise: "1) The filibuster rule will not change; and 2) the filibuster will not be used to prevent a floor vote in which there is a Senate majority in favor of the nominee except in the most extraordinary circumstances. " Lindberg does not foresee an end to the increased partisan rancor, reasoning that the activist wing of both parties, but particularly the Democrats, will not allow such a compromise.

What I don't see is how any accommodation by the Democratic leadership is possible at this point. The activist wing of the party has talked itself into the proposition that the currently blocked nominees are blocked because they are simply unacceptable - unfit for the bench, regardless of how qualified the ABA says they are, each and every last one of them. When Senate Minority Leader Harry Reid floated a compromise two weeks ago that would let some through, some people on his ne plus ultra wing didn't get the memo that it was just a tactical ploy. They were horrified at the thought that any of los filibusterados would make it to the bench.
Can six independent-minded Democrats and six independent-minded Republicans make a deal? Against the wishes of their leadership and their party's base? Republicans would find such a deal easier to make than Democrats. It gets their judges confirmed and reserves the question of what "extraordinary circumstances" are and the threat of the ultimate sanction, ending the filibuster, in case of abuse. Democrats, on the other hand, have to accept that a group of judges who have become the objects of fear and loathing to those in their party most actively interested in the judiciary will indeed take seats on the appellate bench, where they will be poised for elevation to the Supreme Court.

I'm not sure I fully agree. I do not think there should be any compromise, nor does it seem that many conservatives seek a compromise resolution. In that case, it seems the base of the Republican party would be more outraged by any dealing. In point of fact it would be the Democrats who stand to gain from any sort of negotiated ploy as described above. The Republicans hold all the cards, and allowing this vague deal to go through would do little in the way of getting all of the justices who currently seem to have majority support confirmed, but it would allow the minority to hold far more sway than it justly should.

On the other hand, Lindberg does have a point. Any concession by the Democrats will anger a large segment of their own base. They will not see it as a victory.

But what will they do? Unlike the GOP, I do not see Democratic base voters turning their backs on their Party because of a perceived sellout on justices. Conservatives have been uneasy with the current administration and Congress, believing that the Party in Washington has compromised core conservative principles. Many on the right see this as an issue where the Republican Party can redeem itself for past transgressions. As such, any sort of deal will only further anger those already concerned with the GOP, and they could potentially stay at home in future elections. I doubt that left-wing activists will be quite as upset should a compromise be worked out in the Senate.

* Thomas Jefferson, at least in my view, was less concerned than other Framers in adhering to tradition. One of his most noteable quotes was that "the earth belongs in usufruct to the living," and that the dead have no rights.