I’ve been driven into nihilistic insanity today by more filibuster news, and now I’ll break from leftist/liberal/Democrat orthodoxy. Take the “nuclear option” to a vote, already.

Apparently McCain says that Dems will allow confirmation votes on the 7 filibustered candidates blocked, so long as they can keep the filibuster. [AP by way of Warroom]

What are the Democrats doing? This is nuts. I’ve seen the rumored numbers of “save the filibuster & the Ds will allow a vote on — judges” go from none to some to 4 and now to all 7. There is no point to having a filibuster if you don’t use it.

I like the filibuster, and think it’s a fine idea — it slows down the process which is almost always a good thing. But it’s ridiculous to keep giving up on all the substantive battles just to keep it. If the Ds cut this deal, Frist can always threaten them again with the “nuclear option”, or some variant thereof, any time the Ds threaten to actually use the filibuster in a significant way. (I note that Reid is already assuring the Republican Minions he won’t be too aggressive in using any parliamentary procedures they permit him.) Frist will certainly not back down when his Xtian Overlords are watching during the high stakes Supreme Court nomination process. Any Democratic attempts to use the filibuster or any other parliamentary moves during that process will create boatloads of pressure & publicity among the Xtian Right. (For some reason this seems to bother the Democrats as well as the Xtian Right’s Republican Minions. Yoo-hoo to Democrats! You will not lose any Xtian Right votes or dollars by sticking with the filibuster or by using it. If they’re not in the Republican camp now, they’re asleep or have some significant personal or policy reasons for not dancing with their Republican minions. And as for non-Xtian-Righters, I have yet to be convinced that mainstream America believes in or even cares about the Xtian Right’s vision for the judiciary.)

Take the “nuclear option” to a vote. What can happen?

  1. The nuclear option loses. Enough Rs break ranks because they realize that it’s a bad idea to slip the brakes on governmental processes for the sake of temporary partisan gain.
  2. Or,

  3. The nuclear option passes, and the (judicial) filibuster goes away. Short-term: This will suit Republicans and their Xtian Right Overlords just fine — for now. Without the (judicial) filibuster, the Republicans get the judges they want in lifetime appointments — including the Supreme Court, which I confess, does give me pause. Democrats will have the opportunity (although god knows they probably won’t take it) to bash the Republicans over the head with their procedural abuses. Polls show most folks don’t want the Republicans to get rid of the filibuster, and don’t trust party officials who want to loosen the brakes. With that point, and a few others, the Ds might even be able to make some progress in recovering one or more branches of US government.

    Middle- and Long-Term: Republicans will eventually lose the White House & the majority in the Senate. Democrats at that point will have the opportunity to make hay while the sun shines, claiming a mandate, and moving ahead with their judicial preferences. Republicans & their Xtian Right Overlords will rue the nuclear option & the filibuster (probably painting the filibuster as a Democratic scheme to expand government). A bit more credible in their position as “persecuted outsiders”, the Overlords / Minions will host “Justice Sunday”, a special day focused on protecting minority* rights and regaining the filibuster. [*Minority party rights, that is; certainly not the rights of actual minorities.]

    Federal Judiciary: Cynically, I suspect it won’t make a difference, because had the Democrats cut a deal to retain a filibuster, they would have just rested on their laurels, proud of their protection of a parliamentary procedure. Hey, if they wanted to, they could use the filibuster to protect us! They’re just waiting for, you know, the right moment. …

    Somewhat less cynically, I admit that I quail at the thought of the Bush Admin having a free hand to put whomever they want in. But you know what? The Rs have been pushing their authority to the limits already. Famous last words, I know, but how much further can they really go? They’ll move a bunch of judges through. Most of the Circuits are already Republican & conservative dominated, ensuring conservative majorities on most 3-judge panels and on most en banc panels. Yes, the District & Appellate Courts are breeding grounds for higher appointments, but there’s plenty of judges on both sides to provide fodder for higher appointments.

    Finally, the Supreme Court. Bush will probably succeed in finding someone more conservative than Rehnquist, but there’s not a lot of room there. And that replacement will affect very few case outcomes; Rehnquist is almost never the swing vote. Stevens, Ginsburg, and O’Connor are also all possible or likely retirements (or worse, if Pat Robertson’s prayers are answered) in the next few years. Bush would certainly appoint someone much more conservative than any one of those justices, and that’s a real loss. But the problem is, the Ds repeatedly demonstrate that they don’t effectively use parliamentary procedures as it is, and the Rs do — the latest set of offered “compromises” only demonstrates this further. So long-term, the loss of the filibuster actually hurts the Rs more than the Ds. And while the Bush Admin gets in a slew of appointments now, with very little minority say, so does the next Administration, and the next one, and the one after that, and the one after that …. The whole Supreme Court bench is going to be replaced in the next 20 years, and four out of nine justices will be replaced in the next five years at the outside.

On the other hand, if the Ds keep cutting these deals to preserve the filibuster, they win the battle but lose the war. When would the Ds feel confident & bold enough to actually use the damn thing? The Rs & their Xtian Overlords will certainly turn up the heat & the press pressure on any uses of the filibuster in the Supreme Court context. And we all know that nomination will be on the Bush Admin’s terms: a battle royale, if they choose, or a merely semi-controversial nominee in order to disarm the opposition for later battles.

So — let’s roll.(TM)

update 5/20: Over at, Tim Grieve analyzes the current state of the filibuster debate. Nothing too awfully notable, but one point just made me shake my head:

While interest groups on the left won’t be happy to see an Owen or a Rogers confirmed, they have their eyes on a bigger prize: keeping the filibuster around long enough to use it if Bush nominates a far-right judge to replace William Rehnquist on the U.S. Supreme Court.

For God’s sake. Like Bush would nominate anybody to the left of Rehnquist? The Rehnquist seat is in strongly conservative hands for the next 20 years, regardless of the filibuster.

Grieve had this interesting point to make about a Byrd / Warner proposal to bring back “advise” into the mix:

With their proposed language, Byrd and Warner seem to have added an additional prong to the proposal — a focus not just on how the Senate treats the judges Bush nominates but on the way Bush chooses those nominees in the first place. Democrats contend that Bush has ignored the “advise” part of the clause of the Constitution that allows the president to appoint judges with the “advise and consent” of the Senate. Saying that he wanted the Senate involved in both the “takeoff and the landing” of judicial nominees, Byrd hinted that the Byrd-Warner language would suggest that the Senate Judiciary Committee create panels of academics and sitting judges that would identify “pools” of mainstream judicial nominees from which the president could choose. The proposal wouldn’t require the president to pick from those pre-selected nominees, Byrd said, but he’d have an easier time getting his judges confirmed if he did.

“Advise” has gotten short shrift, but it’s a pretty namby-pamby Senatorial role anyway. But “‘pools’ of mainstream judicial nominees” isn’t going to increase the quality of the nominees. If we wanted a “mainstream” judiciary then we should just program a computer to dispense justice, a la John Varley‘s “Eight Worlds” Universe. (See, e.g., The Golden Globe.)

Farhad Manjoo is more on the same page with me, looking beyond the current kerfuffle to a more free-wheeling judicial confirmation process.