Hugh's Vox Blogoli 2.2
Hugh Hewitt has set another challenge to the blogosphere:
Does the Senate GOP Go McClellan or Grant if Harry Reid "Goes Gingrich?"
I have argued before that Hugh's opposition to unseating Arlen Specter as the Chairman of the Judiciary Committee was inconsistent with his enthusiasm for invoking the "nuclear option" -- using a majority of less than 60 to uphold a ruling that a filibuster to prevent a vote on a Presidential nominee is unconstitutional.
I didn't oppose it outright, but urged caution and a strong effort to show how unfair the filibuster was, before resorting to the "nuclear option":
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.
That post was a tactical disagreement with Hugh, and a recognition that the traditions of the Senate deserve some consideration -- not a "Never!" to the nuclear option.
I don't think Hugh would oppose putting the Dems to a true filibuster test, with all-night sessions and so on, before invoking the option.
The filibuster, historically, was not used seriously by large groups of Senators, as opposed to mavericks like Morse, and one-of-a-kind figures like Huey Long, except for issues of almost-constitutional import. Although segregation was doomed and fundamentally unjust (even if its demise has not led to the heave-on-earth its advocates hoped for), it was a long-term part of the social order in much of the country. The requirement of a supermajority for such an important issue may have been wrong, but it was not petty, and it was not repeated for individual appointees, even those noxious to the segregationists.
So, once the Democrats have been given a chance to back down, and their stubbornness dramatized, invoking the nuclear option, though not to be taken lightly, would be substantially justified, as we lawyers say.
The filibuster is not written into the Constitution; it's an accretion, albeit one of long standing. The GOP has not won just the Presidency, but a decisive margin in the Senate over a considerable period of time. They are the majority party and the governing party, and they have a right and duty to govern.
Now, if you shoot at a king, you must kill him. Once Lincoln decided to go to war to preserve the Union, he needed a Grant, not a McClellan to carry out his policy.
The party of Chuck Schumer and Barbara Boxer is beneath contempt, petty, arrogant, and vicious, typified, perhaps, by the argument that a Michael Luttig would be disqualified by bias because his father was murdered, or that a devout Catholic can't sit as an appellate judge because their religion influences their world view.
If the nuclear option is exercised, and the GOP prevails, the courts will in all probability defer to the Senate and not involve themselves in a political question within the competence of another branch of government.
How can the Democrats retaliate? For a time, they can paralyze the Senate. But not forever. They are the party of government, and unlike Gingrich, cannot be philosophically comfortable paralyzing the government's operations for long. Moreover, we are at war, like it or not, and to hold things up too long in such a time would arouse the wrath of many.
The other explosion would come from the usual suspects, the MSM, the professoriat, and the Ralph Neases of the world. Their deep hostility to Bush, however, has had the paradoxical effect of rendering them toothless. What more can they do than George Soros, Dan Rather, and Michael Moore have already tried. Let the heathen rage!
In the end, I am not so certain the appointment of these judges will be as momentous as some on the right hope and the left fears. Law changes slowly. Even Roe will not go quickly, and if it does, the abortion issue will be back in the states where it belonged in the first place.
The fight over the appointments, however, is sure to be an interesting spectacle of political athletics.