December 13, 2004

The Hobgoblin Of Little Minds

Hugh Hewitt is truly the Great Panjandrum of conservative bloggers. When the Arlen Specter kerfuffle erupted after the election results were in, Hugh sensibly argued for caution on the part of those who sought to block his elevation to Chairman of the Judiciary Committee. Beyond the the "big tent" argument for preserving the majority, Hugh thought that messing with the traditional seniority arrangements of the Senate was unwise.

Now comes the issue of the filibuster of judicial nominees. Hugh says this, proving, perhaps, Emerson's adage that "a foolish consistency is the hobgoblin of little minds":

A front-page article in the Washington Post is on the "nuclear option" in the Senate. Bill Frist's finger is on the button.  Push it, Senator.

The "nuclear option" refers to a strategy of rising to a point of order, in the midst of a filibuster, that the 60-vote cloture rule when applied to a judicial nomination is unconstitutional. When the Vice-President, presiding, accepts the point of order, a simple majority can sustain the ruling of the chair. If the votes are there, bu-bye filibuster.

As a tactic, this ploy may well be brilliant. As a strategy, it is questionable. The filibuster is a traditional device in the Senate, and is a means by which minorities can delay, if not thwart, the tendency of majorities to ride roughshod over the opposition.

The filibuster, in short, can be a check against the tyranny of the majority. Although liberals saw it as a great evil when the South employed it to block civil rights legislation, they now invoke it to prevent a few judicial appointments that stick particularly sharply in their craw.

Looked at purely tactically, the "nuclear option" may well be an ingenious means of getting a particular judge confirmed. Looked at institutionally, the "nuclear option" will tend to make the Senate more like the "other body," where the majority gets to convert its wisdom or folly of the moment into legislation. The worm will inevitably turn. Some day, a liberal President will ask a Democratic Senate majority to confirm a nominee or pass a bill that the centrists and conservatives find especially distasteful. In the absence of the filibuster, all the minority will be able to do is pule and whine, as minorities will.

We should, therefore, think as long and hard about the "nuclear option" of eliminating the filibuster by a bare majority, as about dumping Arlen Specter for careless and purely theoretical remarks. Certainly, it seems to me, the "nuclear option" should be avoided until they pay the price of a real around-the-clock, make-them-talk-until-their-bladders-swell-to-bursting, Farmers'-Almanac-reading filibuster, as in olden times. The mere ritual of announcing a filibuster should not be allowed as a namby-pamby substitute for the sublime oratorical meanderings of a Wayne Morse, who strapped a bottle to his leg and spoke for, I think, 24 hours to stall a Tidelands Oil bill whose provisions are lost in the mists of time. Let us see if Harry Reid can find his equal, or a contemporary echo of the remarkable Huey P. Long, whose extended oratory echoes to this day.

Then, and only then, let us consider pushing the button.

Hugh got it right about the seniority system -- tinker with it only in extremis, because traditions matter. The filibuster is a more important, republican with a small "r" tradition, because it is a barrier to a purely majoritarian legislative branch in the European style. Change is inevitable, and if the cause is important enough, the Schumerites' efforts destructive enough, and the absence of red-state Democrats who will vote for cloture certain enough, perhaps this button must be pushed. But not at the outset, and not lightly.

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