On the Filibuster

As many people have argued, I would advocate that Alito be filibustered in the Senate. About the nature of his conservatism, there’s simply no serious debate, as I have argued here and here and here and here; any systematic look at his decisions indicates that he’s overwhelmingly likely to be a Scalia/Thomas/Rehnquist kind of conservative, and until Monday morning this wasn’t particularly controversial. (On any individual case you can construct an argument that it’s a purely legal disagreement, but if that was all that was going on there would be a significant number cases where he used ambigiuous legal materials to produce a more liberal result, but there aren’t. There’s nothing wrong with this per se; it’s just evidence that he’s very conservative. It’s the body of work, not any one case.) Obviously, this is very bad from a progressive standpoint, especially since he will be replacing a moderate conservative swing vote. Most liberals agree that Democrats should certainly vote “no.” But should there be a filibuster?

I should start by saying that I am actually against filibusters, if I could set the rules (which, ironically, is an argument in favor of its use, as I will argue later.) But as I have said before, unilateral disarmament is not a plan. The rules are in place; it’s legitimate to use them until they’re changed. There are, however, some good arguments for abjuring the filibuster, and I’ll discuss the two big ones using a framework suggested to me by Publius. The first is what might be called the “Bush won the election” argument, that since Bush won Democrats can only filibuster someone who’s completely unqualified or an utter crackpot, and Alito obviously is neither. I don’t think, however, that this means that the Dems can’t filibuster Alito. First of all, Democratic (and moderate Republican) senators won their elections too, and they’re entitled to use the Senate’s rules to exercise its advise and consent powers, just as the President has the right to nominate (and will obviously not–and should not– nominate someone progressives will like.) I do agree that the Dems should not be able to double-cross Bush if he appointed someone suggested as part of discussions; Hatch let Ginsburg and Breyer through based on a tacit agreement, and that’s fair. But it’s obviously inoperative in this case; not only did Reid not say he was acceptable, he specifically said that his nomination would provoke a major fight. I also don’t think that a filibuster would be justified if Alito were replacing another staunch conservative, but he’s not. I don’t think that Bush’s “victory” in 2000 and historically narrow win for a wartime incumbent provide some kind of normative mandate to effect a major ideological change on the Supreme Court (and judging by the way they’re selling him as a moderate, the White House doesn’t think it has one either.) Both the President and the Senate have their institutional prerogatives, and the nomination’s outcome can and should be fought on that basis; I don’t think there’s any reason to defer to the President here.

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