The "Only Judicial Filibuster" Gambit.

Ed Kilgore says most of what needs to be said about Byron York's attempt to claim that GOP arguments against the judicial filibuster were acts of High Constitutional Principle. York recycles the argument that, because the Senate is charged with giving "advice and consent" with respect to presidential nominees, the filibuster of judicial appointees somehow raises constitutional problems. This argument is transparently unserious, and York is kind enough to give away the show himself:

There were other, less well-known practices, like so-called "blue slips" and holds, that were also used to block nominees, but since those practices were mostly used by home-state senators on nominees from their state or region, lawmakers grumbled about them but did not eliminate their use.

But, of course, if there's some kind of constitutional requirement that the Senate give up-or-down votes, bottling up nominees in committee is exactly as problematic as filibustering them.

The reason Republicans didn't make a case for eliminating these methods has nothing to do with the Constitution and everything to do with the fact that the Republicans frequently used the Judiciary Committee to prevent Clinton's nominees from getting up and down votes, actions that, if we are to take York's arguments seriously, represented a failure to give "advice and consent." (If the difference is supposed to be that the filibuster of judicial nominees was "unprecedented," the same thing can be said for the routine filibuster of ordinary legislation.) These actions make it pretty clear that Republicans didn't take their own ad hoc arguments for selectively eliminating the judicial filibuster seriously. And their behavior toward Obama's nominees suggests that they seem to have remembered that their previous arguments were specious.

In short, there's no high principle involved here. Republicans wanted the filibuster eliminated only selectively because the filibuster favors conservative interests in other contexts. The best outcome would be for it to be eliminated in every case, but there's nothing uniquely problematic about judicial filibusters -- as Ed says, if anything, filibusters are more defensible when used against lifetime appointees to the federal bench than against ordinary legislation.

--Scott Lemieux

You may also like