Cheating

There’s no good defense of the filibuster. But the “nuclear option” isn’t rules reform; it’s outright cheating.

I don’t think there’s much of a case for the filibuster. Super-majorities usually work against progressive causes. In an increasingly corrupt system, increasing the blocking power of minorities makes shakedowns more effective. The Constitutionally-mandated rotten-borough apportionment of the Senate makes it even less desirable to, in effect, give the senators from the twenty-one smallest states power to block any piece of legislation.

In this regard, I see no case whatever for distinguishing judicial nominations from the rest of the Senate’s business. The Constitution doesn’t distinguish, so if we’re going to get rid of the effective super-majority requirement created by the filibuster, we ought to get rid of it across the board.

Therefore, if the Republicans proposed eliminating the filibuster altogether, I’d be for it, even if the proposal were to take immediate effect. Obviously, I’d be more enthusiastic if the rules change were delayed until one or two more elections had passed. But the long run is more important than the short run, and getting rid of a major mechanism of obstruction would probably be a good deal even if it meant replacing Rehnquist with another Rehnquist. (I’m counting on Justice Stevens to be carried out feet-first rather than let GWB appoint his successor.)

I think the Democrats would have a better logical case arguing against the selective elimination of the filibuster than arguing in favor of the filibuster itself; whether that would be a better political case or not I couldn’t guess.

But it seems to me that the “nuclear option” question isn’t really about the filibuster, or about judicial filibusters, at all. It’s about cheating. The Senate, acting under Constitutional authority, has created rules for itself. Those rules include a provision that changing the rules requires a two-thirds majority. (Requiring a super-majority for rules changes seems to me sound, since otherwise there would be in effect no rules at all that a temporary majority had to respect.)

The “nuclear option” involves the Vice-President, acting as the President of the Senate, making a clearly false decision about what the current rules are, or an absurd decision that the Senate’s Constitutional power to make its own rules doesn’t, in fact, give it the right to make its own rules and that the filibuster as applied to judicial appointments is therefore illegal. It never occurred to the Democrats to have Hubert Humphrey rule that the Abe Fortas filibuster was unconstitutional, and then have his false decision sustained by a simple majority vote. (As the old Yiddish proverb has it, “One lies, and the other swears to it.”)

Again, I don’t claim to be an expert on public opinion, but on general principles I think the Democrats are better off arguing about cheating than they are claiming that the filibuster is a precious heirloom. It was a lousy procedural trick when the Republicans used it to block national health insurance under Truman; it was a lousy procedural trick when the Dixiecrats used it to block anti-lynching and civil rights bills from the ’30s through the ’70s; and it’s a lousy procedural trick today.

But running the Senate by the rules of Calvinball is no way to fix anything. If I were a Democratic politician, I’d just keep saying: “The Republicans in Washington have been lying and stealing for years; now they’re cheating, too.”

The last time I checked, fair play was among the family values.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com