There’s a recent trend to get super-angry that Republicans would consider filibustering judicial appointments. “But you insisted that Bush’s appointees shouldn’t be filibustered!” they sputter.
Well, yes. And Democrats claimed that they had every right to do so. Now the positions are reversed and – shockingly – opinions about the legitimacy of the question have flipped, too. Fancy that.
I tend to believe that the filibuster should be an exceptional device – preserved for relatively rare occasions. In principle, I’d like to see that made the norm.
But that’s not the issue here. What frustrates me is people who clearly are only concerned with what will fulfill their particular political objectives and who latch onto “principle” as a justification. This game of “you started it! No, you did!” is embarrassing for both sides. It’s childish and silly, and it does a disservice to the real issues here.
Either you actually value a particular process and are willing to consistently affirm that process even when it disadvantages you, or you are only concerned with outcomes and need to make whatever normative argument you want based on that.
The latter case isn’t bad. It’s a perfectly reasonable position, and it’s even consistent to care MORE about results than process, while still wishing there was a way to get out of the impasse. That describes my position. I dislike the filibuster – particularly when it is treated as a matter of course that every single piece of legislation must now get 60 votes – but I do not expect the opposition to abandon it, nor did I want the Democrats to completely disavow it. Its utility in a two-party system is too obvious to expect anyone to unilaterally give it up.
What I would really like to see is genuine effort to reform these practices. A few months ago I proposed a bunch of things the Democrats could do now that they were in power to demonstrate their legitimate interest in good governance. I still think they should do some of that stuff, because there are some things that are important for the long-term functioning if a strong democracy even if it requires sacrificing a powerful position in the short term.
But there are other ideas that really deserve more attention – such as implementing new rules, but grandparenting in the current operating procedures for several more election cycles. There’s been talk recently of fixing the stupid Supreme Court appointment process. Making it an 18-year term, for example, and cycling in someone new every two years. It would help end the silly unpredictability, it would prevent people like Souter and Stevens feeling obliged to hang on indefinitely so that they can get replaced by an ideologically similar judge.
The problem is that any such change messes with the current balance. So whichever side would be disadvantaged has every incentive to block it. So instead, build in a sufficient buffer to ensure that no one will know who it might hurt or help.
When people say they like post-partisanship, this is the kind of thing a lot of them are talking about. They don’t mean “bipartisan” compromises where both sides make a deal that satisfies neither. They mean stuff where there’s a clearly best-case scenario, but the political vagaries of a politics that lives entirely in the moment make it impossible.