There was a time when I wasn’t so sure that the Republicans ought to change the filibuster rule, as I was concerned as to precedent and as to ramifications. Of course, I also thought that the Democrats would seek a less rigorous opposition post-election (I still think that the smart move for the Democrats would be to allow some of these nominees to pass, and then be in a position to appear reasonable and then block the others). However, such an outcome appears not to be in the cards, so I see no option but for the Republicans to seek to eliminate the filibuster as it pertains to nominees to the courts.

After the 2024 election, the Democrats could at least make an argument that Bush didn’t really have the full right to remake the courts via his nominations–certainly it was an argument that had some public sympathy (not one I really bought, mind you, but it could be made). Still, the fact that the Republicans gained in the Senate in 2024 and 2024, not to mention the fact that Bush was convincingly re-elected in 2024, utterly destroys whatever tenuous basis those arguments had in the first place.

In all honesty, despite whatever arguments that the Democrats may make, the Republicans are on firm Constitutional ground, and the Democrats only have tradition to fall back upon. Not only is it true that the filibuster rules have been changed before (and at the behest of Robert Byrd, no less), but there is nothing in the Constitution that guarantees the filibuster power.

Byrd, in his speech the other day, and in an editorial in WaPo made claims about the Constitution in connection with the current debate over the Democrats’ filibustering ways vis-à-vis Bush’s Appeals Court Nominees. To wit, in WaPo he wrote:

It starts with shutting off debate on judges, but it won’t end there. This nuclear option could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy. It could destroy the Senate’s very essence — the constitutional privilege of free speech and debate.

To which I say: that is an application of the slippery slope fallacy so bad as to make a college sophomore with any self-respect blush. Further, it is a load of rhetorical balderdash. By that logic the members of the House of Representatives have neither debate nor free speech because they do not have the right to unlimited debate.

The nonsense continues:

To understand the danger, one needs to understand the Senate. The Framers created an institution designed not for speed or efficiency but as a place where mature wisdom would reside. They intended the Senate to be the stabilizer, the fence, the check on attempts at tyranny. To carry out that role, an individual senator has the right to speak, perhaps without limit, in order to expose an issue or draw attention to new or differing viewpoints. But this legislative nuclear option would mute dissent and gag opposition voices.

He is correct about the basic design of the Senate in an abstract sense. However, there is nothing, absolutely nothing in the Constitution that dictates the amount of time that Senators can/should be allowed to debate. Indeed, there is nothing about changing the filibuster rule for nominees that would stop debate, or stop the filibuster option for other legislative matters. There is already a stricture against filibusters over the budget, does the Senator from West Virginia then suggest that there is a lack of “free speech and debate” over the budget and that in those case the opposition is gagged? What nonsense.

(And, note the “perhaps” in Byrd’s paragraph about debate).

Further, doing away with the filibuster for judicial nominees would not silence debate. Rather, it would allow one. The current situation is that the Democrats are blocking the nominations from being heard on the floor, and therefore there has been no floor debate on the nominees, just attempts to debate whether there will be a debate. The whole goal here is to get the nominees to the floor so that a debate and then a vote could be taken. Byrd is disingenuous at best when he cries “we can’t speak” in this process, when it is the very goal of the Democratic minority (the one that shrank at the polls last year) to obstruct the process.

Indeed, if all Senator Byrd wants is to protect debate, then the current situation would allow the Democratic minority to hold the floor until they were finished with their say, and then they could vote for cloture, which would allow for a vote on the nominee under debate. As such, they could employ their persuasive powers on the floor on the Senate to try and change the minds of some of the majority, or to use the press to transmit their views to the public in hope of the public, in turn, pressuring the majority. However, this is not about defending the right of the minority to debate (they have that now), it is about the right to outright block the President’s nominees (which they have been exercising for several years now). Since they appear to assume that their persuasive powers are inadequate, they have chosen to use the cloture rule as a blunt instrument that cuts off debate, rather than enhancing it.

If the Democrats simply want a debate, then all they have to do is negotiate with Republicans and state that they will allow a vote once debate is complete, however long that may take. However, they don’t want debate, they want the destruction of these nominations.

If we look at the actual U.S. Constitution we find that in regards to the internal workings of the Senate, the Republicans are right, and Senator Byrd is wrong, as Article I, Section 5, Clause 2 states:

Each House may determine the Rules of its Proceedings…

As such the Republicans, as the majority, have the right to change the rules (a right Byrd himself acknowledged in 1979). Indeed, all Byrd has, constitutionally speaking, is Article II, Section 2:

Clause 2: […] and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…

And Byrd is right: there is no guarantee of a vote implied here. However, to infer the right to filibuster from this clause is lunacy

In short: Byrd and his allies in the Democratic Party do not want to simply protect free debate in the Senate–they have that right now and could easily maintain it. Rather, they are simply manipulating the rules to their advantage to block Appeals Court nominees, which is fair enough. However, the Republicans have every right to, in turn, use the rules to their advantage and change the rule over extended debate for judicial nominees. This, too, is fair.

The Democrats need to decide if they are willing to acquiesce somewhat, or further diminish their own power and standing. It seems they prefer the latter route. And while they may think that a massive response to the so-called “nuclear option” will bring them positive press, I think that it will, in fact, feed to current perception amongst many in the public that the Democrats are the party of obstruction, and it will not help them either in the PR wars, nor at the ballot box in 2024.

h/t: Joe Gandelman at Dean’s World for pointing out the Byrd editorial.