The ever-changing propriety of filibusters

On January 1, 1995, after two years of Republican filibusters, the New York Times wrote it was time to abolish the filibuster:

The U.S. Senate likes to call itself the world’s greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster. Hooray for him. . . Now is the perfect moment . . . to get rid of an archaic rule that frustrates democracy and serves no useful purpose.

But, by March 2005, when Democrats were the ones employing the filibuster, the New York Times was able to see a useful purpose after all:

In the past we’ve been frustrated when legislators tried to stop important bills from passing by resorting to the same tactic. The filibuster, which allows 41 senators to delay action indefinitely, is a rough instrument that should be used with caution. But its existence goes to the center of the peculiar but effective form of government America cherishes. . .

While the filibuster has not traditionally been used to stop judicial confirmations, it seems to us this is a matter in which it’s most important that a large minority of senators has a limited right of veto. . .

A decade ago, this page expressed support for tactics that would have gone even further than the “nuclear option” in eliminating the power of the filibuster. At the time, we had vivid memories of the difficulty that Senate Republicans had given much of Bill Clinton’s early agenda. But we were still wrong. To see the filibuster fully, it’s obviously a good idea to have to live on both sides of it. We hope acknowledging our own error may remind some wavering Republican senators that someday they, too, will be on the other side and in need of all the protections the Senate rules can provide.

As one of the nation’s least consistent, most partisan papers, it seemed likely that the NYT’s opportunistic rediscovery of the filibuster’s value would disappear once the Republicans began using it again. With Democrats in ascendance, it seemed inevitable that the NYT would rediscover the evil of the filibuster.  It’s only been a matter of time.

Nevertheless, I am a little bit surprised.  I thought that they would wait until the Republicans had actually filibustered something.  Nope. Two weeks ago, the NYT ran two op-ed pieces vilifying the filibuster, and this week the NYT’s editorial page launched its pre-emptive strike on the filibuster.  Moreover, it took a strikingly shrill tone:

When President George W. Bush was stocking the federal courts with conservative ideologues, Senate Republicans threatened to change the august body’s rules if any Democrat dared to try to block his choices, even the least-competent, most-radical ones. Filibustering the president’s nominees, they said, would be an outrageous abuse of senatorial privilege. . .

Now that President Obama is preparing to fill vacancies on federal benches, Republican senators have fired off an intemperate letter threatening — you got it — filibusters if Mr. Obama’s nominees are not to their liking. . .

It is particularly strange to see Senate Republicans raising the specter of filibustering nominees. When Mr. Bush was doing the nominating, Senator Orrin Hatch, Republican of Utah and a former Judiciary Committee chairman, warned Democrats that filibusters “mired the judicial-confirmation process in a political and constitutional crisis that undermines democracy, the judiciary, the Senate, and the Constitution.”

A filibuster can be an appropriate response when it is clear that a particular nominee would be a dangerous addition to the bench. The Republicans’ rush to threaten filibusters in the absence of actual nominees is not only at odds with their previous views on the subject, but shows a lack of respect for the confirmation process.

The NYT is clearly conscious of the danger of making itself a laughingstock if it reverses itself a second time, so it tries to find some nuance.  Filibustering an actual nominee, that’s okay (when he or she would be a “dangerous addition” to the bench), but writing a letter saying that you might filibuster a nominee, that is beyond the pale!

Come again?  If filibustering is okay, how can not-yet-filibustering be wrong?

There is a matter of substance to address here, though.  To try to hide its own hypocrisy, the NYT employs a bit of rhetorical jujitsu.  The Republicans are being hypocritical, they argue, because they used to argue that filibusters were bad, and now they plan to use them. Michael Barone’s first rule (all process arguments are insincere) certainly comes to mind, but I think the GOP can actually offer a good defense.

They key point is that the Democrats prevailed on the filibuster. Republicans argued that what the Democrats were doing was wrong, and tried to put a stop to it, but they failed.  If the GOP had exercised the “nuclear option,” abolishing filibusters of judicial nominees, and then demanded them back, they would be hypocrites of the first order.

But they did not.  Filibusters of judicial appointments were not abolished, and were used extensively.  Republicans need to use them now.  If they do not, they accede to an arrangement in which Democrats block nominees and Republicans do not.  That kind of unilateral disarmament would be fatal to all we hold dear, and it is preposterous for the NYT to suggest that the GOP submit to it.

ASIDE: Something very much like this happened in the debate over term limits.  The term-limits caucus failed to enact them for everyone, but far too many of them decided to impose them on themselves.  As a result, the term-limits caucus is largely gone.  All that are left are the “hypocrites” who decided not to impose term limits unilaterally on themselves.

POSTSCRIPT: Beyond its flagrant hypocrisy, Jonathan Adler points out that the NYT editorial also includes a number of factual distortions. There’s also the topic of blue slips, which I’ll leave for another post.


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