Taking a few steps back on the filibuster

I’ve written extensively at this blog about my distaste for filibuster-politics.  My main concern is that the filibuster makes legislators less accountable, because any failure of meaningful legislation can be shrugged off as the fault of the obstructionist minority.  But is this quite correct?  After all, major legislation has passed through other means such as the reconciliation process.  If Congress decides it won’t pass something because of the filibuster, we can still hold them accountable since they did not pursue all available avenues before admitting defeat.  On this note, I think Mike Potemra makes a very good point:

Even after more than 30 years of following politics, I continue to be amazed by how short-sighted political people can be. Just a few short years ago, public-spirited U.S. senators (including my own former boss, Republican Mike DeWine of Ohio) were vilified by the right wing for standing up to save the filibuster, and thus the Senate’s constitutional role in moderating the passions of the more plebiscitary House of Representatives. The filibuster that they saved is now the only thing standing between us and Obamacare. I’m not holding my breath waiting for any apologies. But can’t we at least, you know, learn something from history? So I address this question to Rachel Maddow, who just delivered a long and passionate address against the filibuster (I caught only the last five minutes of it): Three years from now, Palin is president, with J. D. Hayworth as Senate majority leader, and Michele Bachmann as Speaker of the House. (Of course it’s impossible – just like the election of Obama was, and the election of Scott Brown, and . . .) I imagine they, too — Palin, Bachmann, Hayworth, Secretary of Defense Liz Cheney, Secretary of Education Glenn Beck, the whole team — are going to want to pass some legislation. Would 51 Senate votes be OK for that, as far as you’re concerned? Or will we agree, then, that major changes in national policy need more deliberation, more of a consensus, and not just the passions of a fleeting democratic moment?

Potemra also notes that even a limited filibuster – allowing, say, judicial nominees to be exempt from its constraints as the Republicans attempted several years ago – would be a disaster. After all, a Supreme Court Justice serves for life, and wields an enormous amount of power, whereas simple legislation can be overhauled, reformed, or repealed at any time.  Mark Thompson, however, argues:

Indeed, the problems of a super-majority requirement for nominations become even more apparent when you consider its effects.  Despite our system’s use of “checks and balances,” there can be little dispute as to the primary Constitutional role of each branch.  The Executive is responsible for the execution of laws that Congress has passed; the judiciary is charged with deciding “cases and controversies”; and the Congress is charged with legislation.

However, the Executive cannot competently perform its duties if the Senate refuses to confirm a sufficient number of officers to do so.  Nor can the judiciary competently perform its duties if it lacks a sufficient number of judges to handle the cases and controversies that come before it.  The purpose of requiring the Senate’s advice and consent is to place a “check” on the Executive’s authority, to act as a safeguard against excessive cronyism or appointments “from a view to popularity,” in Hamilton’s words.  It is explicitly not intended to permit the Senate to act as a complete block to the President’s ability to “produce a good administration,” to say nothing about the ability of a single Senator to so act.

Yet this is precisely what has happened over the last number of years.  It is not enough that the minority party oppose a particular nomination for ideological reasons, which I think is perfectly fair and acceptable.  The minority party instead also finds it appropriate to deploy the filibuster for such nominations.  The result?  Over 100 judicial vacancies in federal courts, including over 80 at the District Court level.  This amounts to approximately 1/8 of the judiciary.

Like Mark, I go back and forth on the filibuster to some degree.  Lately I have come to believe that if Democrats cannot pass their healthcare bill through reconciliation or by going back to the drawing board, then perhaps it wasn’t meant to be.  Indeed, reconciliation might have been a much better road to run down in the first place given all the bad deals they had to make along the way to get 60 votes.