“If you choose not to decide, you still have made a choice.”
– Rush, “Freewill”
It is always amusing to watch people cynically change their views on the filibuster. We saw an example of that recently with the New Republic, which ran a gazillion pieces decrying the filibuster and praising the nuclear option — right up until the last election, at which point they displayed a Strange New Respect for the filibuster.
But people’s views can indeed honestly evolve, and I think it might be useful to disclose one way in which my own views have evolved — and to announce it at a time (now) when it doesn’t help my side ideologically in any way. Indeed, it could hurt it.
So, apropos of nothing, let me summarize the change in my opinion, which has to do specifically with judicial filibusters, and not filibusters generally.
OLD POSITION: The judicial filibuster is constitutionally infirm because the “advice and consent” clause requires an up or down vote for any nominee. The “nuclear option” is constitutionally required for votes on judicial nominees.
NEW POSITION: The Senate has the right to set its own rules. A majority of Senators has the power to do anything it wants, including honor filibusters, reject filibusters, or change filibuster rules. Thus, the “nuclear option” is not constitutionally required for votes on judicial nominees, but it is always available to a majority.
As you can see:
1) This has nothing to do with the traditional filibuster.
My view on that has never changed: if the Senate wants to use the traditional filibuster, it can. My view on the judicial filibuster is now in line with my long-held view on the filibuster generally.
2) The only difference is that now I don’t think the nuclear option for judicial nominees is constitutionally required.
Ideologically, this should make no difference at a time like now, when the party most in line with my views is about to control the Senate with fewer than 60 votes, at a time when the opposing party controls the Presidency. The only way it could make a difference is in this incredibly unrealistic scenario: Obama nominates someone so awesome from our perspective that a majority of the GOP wants to push the nomination through, but the Democrat minority wants to filibuster the nomination. In that unthinkable scenario, I could not (consistent with my new position) advocate that the nuclear option was constitutionally required, but merely available to the majority.
So you see, I am actually changing my mind for principled reasons: namely, I have thought about it more. Let me explain.
When I previously advocated that the nuclear option was constitutionally required, it was because I believed that the “advice and consent” clause required an up-or-down vote from the whole Senate. Somewhere in the back of my mind, though, there was always a voice whispering: doesn’t the Senate have the right to set its own rules? Usually, I think, I would discount that by pointing out (correctly) that the current Senate is not bound by rules that it did not adopt.
And I still believe that. The main difference in my thinking, and it is a subtle one, is that a majority of Senators may behave as if they are bound by those rules.
In my view, the majority can do whatever it wants, but is not required to. The majority is not bound by any tradition of filibusters, which tradition is inconsistent in any event. Nor can a majority be bound by rules that say they need a supermajority to change the rules. However, a majority can choose to behave as if they are bound by these traditions, if they choose to do so for institutional reasons.
As the quote that opens this post implies, even if a majority of Senators chooses not to decide — i.e. chooses to allow a filibuster to go forward — they still have made that choice. And as long as they recognize that they have the power to change it, they may, for institutional reasons, choose not to exercise it.
This is going to come up again, and there will probably be times that my position slightly hurts me ideologically, and other times when it helps me a little. I figured I would say it now, when it doesn’t matter, so I wouldn’t be like those New Republic hypocrites.