Compromise or appeasement?

On what conceivable Constitutional theory could the “compromise” over judicial filibusters be justified?

I’m agnostic as to the identities of the winners and losers from the Senate’s filibuster deal. I’m not even sure whether those identities are knowable now, or whether we need to wait to find out. Surely I don’t know now, but perhaps there are experts who do. (As usual, it’s hard for non-experts to judge the validity of claims to expertise.)

What I’m sure of is that the deal makes no Constitutional sense.

Either the Constitution allows filibusters to block judicial appointments, or it forbids such filibusters. (It seems to me impossible to distinguish between judicial-nomination filibusters and other filibusters in Constitutional terms, but that’s a separate question.)

If the Constitution allows such filibusters, then the threat of the “nuclear option” was an illegitimate threat. A concession made to ward off an illegitimate threat isn’t a compromise; it’s an act of appeasement.

On the other hand, if the Constitution forbids such filibusters, then it’s the Democrats who were exacting concessions by threatening unlawful action, and the Republicans who caved in to that threat.

So I’m having a very hard time figuring out what Constitutional theory the fourteen “moderates” could claim to have been acting on.

What makes me saddest is that no one seems to care what the Constitution actually says on the subject. That’s not a healthy situation for a constitutional republic.

Update Lindsay Beyerstein has details. In rebuttal, Anthony Argyriou points out that abolishing the filibuster would be Constitutional. Of course it would. But abolishing it in a way that avoids the Senate rules about procedures for changing the Senate rules isn’t.

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: