I have kept a little distance from the judicial confirmation filibuster issue because I have mixed feelings about the merits of the argument on principle, although this is clearly a power grab by the GOP Senate and George W. Bush’s Administration. As far as the arguments we mostly hear - what strikes me is a lot of people seem to be taking their position from (what is traditionally) the other side.
Some examples:
- Democrats point to a 95% confirmation rate for Bush’s judges - I know that it’s supposed to show how accommodating they are, but isn’t that a sign of failure (given the conservative nature of Bush’s nominees)? One can argue about the politicization of the process, and whether we wouldn’t be better off if it wasn’t politicized, but right now we are where we are.
- Have most Republican conservatives forgotten their mistrust of simple majority rule?
In other cases the rhetoric is perverse and elevated beyond reason. The latest example of this comes courtesy of Pennsylvania Republican Senator Rick Santorum the “Rainmaker”:
“What the Democrats are doing is the equivalent of Adolf Hitler in 1942 saying, ‘I’m in Paris. How dare you invade me. How dare you bomb my city? It’s mine.’ This is no more the rule of the senate than it was the rule of the senate before not to filibuster.”
Yes, this is the same senator who recently criticized West Virginia Senator Robert Byrd for comparing the Republican attempt to end filibusters by questionably changing the Senate rules with Adolf Hitler’s change of laws in Nazi Germany. Here is what Senator Byrd said,
“But witness how men with motives and a majority can manipulate law to cruel and unjust ends. Historian Alan Bullock writes that Hitler’s dictatorship rested on the constitutional foundation of a single law, the Enabling Law. Hitler needed a two-thirds vote to pass that law, and he cajoled his opposition in the Reichstag to support it. Bullock writes that ‘Hitler was prepared to promise anything to get his bill through, with the appearances of legality preserved intact.’ And he succeeded.
‘Hitler’s originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the State: the correct order of events was first to secure access to that power and then begin his revolution. Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal.’
And that is what the nuclear option seeks to do to Rule XXII of the Standing Rules of the Senate.
It seeks to alter the rules by sidestepping the rules, thus making the impermissible the rule. Employing the ‘nuclear option’, engaging a pernicious, procedural maneuver to serve immediate partisan goals, risks violating our nation’s core democratic values and poisoning the Senate’s deliberative process.”
The Republicans had an undeserved field day with Byrd’s remarks, conveniently forgetting Republican Nazi analogies of the recent past. In response to Senator Byrd, Senator Rick Santorum said at that time in a statement (note, I can’t find it on his website) that
“Senator Byrd’s inappropriate remarks comparing his Republican colleagues with Nazis are inexcusable…These comments lessen the credibility of the senator and the decorum of the Senate. He should retract his statement and ask for pardon.”
And what does Senator Santorum say now, now that he has invoked his own much less reasoned and less eloquent comparison of the Democrats with Adolf Hitler (for comparison read Byrd’s whole speech above, I’m not persuaded by the argument, but read it)? According to Yahoo! News, “Santorum later said in a release that his remark ‘was a mistake and I meant no offense.’” I also don’t see that release on Santorum’s website either - although I do (as evidenced above) see Robert Byrd’s entire speech on his website - which may tell you something about the reasoning and merits of the respective arguments. Whatever else may be said, clearly Republican Senator Rick Santorum earlier did hypocritically ‘protest too much’ in the case of Democratic Senator Byrd’s speech.
While there are some very well reasoned progressive arguments for keeping the filibuster - as well as reasons why Senate structural changes have made them more meaningful to progressives (and here) - they aren’t the one’s many, if not most progressives hear and read. It’s fair to say many, if not most conservatives are also not hearing and reading the (today minority) argument for the filibuster that was traditionally their own argument. Because of all the stampeding occurring on the issue, most people will not hear these more insightful structural arguments soon, if at all. Ending the filibuster for judges is a serious structural change to the Senate as well as a short-term power grab by the GOP. The public, including activists, would be better served with better analysis than most of us see on the issue.
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