Monday, November 07, 2005

Is the Filibuster Good or Bad for Progressives?

I tend to agree with Scott at LGM that Scalito is filibuster-worthy, and I agree with the arguments of those who say that as long as the filibuster is available for Democrats to use, they shouldn't be intimidated by Republicans or the press from exercising their right to use it. Even if it results in Republicans unleashing the Nuclear Option to defeat it.

But I'm not so sure I agree with Big Media Matt that Democrats should feel free to invoke the filibuster in an effort to make Republicans do, what will in effect, put the end to filibustering any and all legislation or appointments.

The filibuster is bad. In the long run, the aspects of the U.S. Constitution that make it hard to enact legislation favor conservatism. On any given day, of course, either side may be helped. At the moment, the Democrats are in the minority so filibusters let them do useful things. But over the long haul, a more parliamentary system would advantage liberals.Breaking the rules is also bad. This, at the end of the day, is what the nuclear option comes down to: not changing the filibuster rule, but violating some other procedural rules in order to change the filibuster rule.

The seven Republican members of the gang are engaging in shameful acts of political blackmail. If they think the Senate rules shouldn't be violated, they should stand against efforts to violate them, not go around striking compromises.

Last, Judge Alito is bad. Since filibusters are, under the current rules, permitted, Democrats may as well use them to stop bad things from happening.

All that being said, the worst possible outcome here is one in which moderate Democrats allow Alito on to the bench in order to preserve the filibuster -- a re-run, in other words, of the original "Gang of 14" deal. If Alito winds up on the Supreme Court, the best possible way for that to happen would be a way that also eliminates the filibuster rule. If the filibuster rule is to be maintained, then the best possible way for that to happen would be one that keeps bad judges off the bench.

I'm not as comfortable as Matt is that the filibuster is a damn holding back the tide of progressive politics. Certainly it was used to obstruct civil rights for many years, a not insignificant outcome where people's lives in the south were concerned.

But consider this list of (proposed) Constitutional Amendments posted over at Washington Monthly.

Progressives are fortunate that the liberalization of the Supreme Court has ensured that the worst of these measures haven't been able to clear the normal legislative process. But a more conservative court (and obviously the Alito nomination is relevant here) might enable Congress to act outside of the Constitutional Amendment process on matters such as flag-burning, school prayer, the income tax, and gay marriage. Should that day come, and it's certainly not beyond the realm of comprehension, the filibuster would come in handy.

So while I'm not opposed to filibustering court nominees, and this nominee (Scalito) in particular, doing it as a means to end the filibuster outright I believe is short-sighted. But might it, as Matt suggests, nevertheless work for progressives in the long run to get rid of the filibuster? Perhaps. But in the short-run, if the tenor of our current political environment is any indication, the lack of the filibuster could be catastrophic for human rights and national progress.

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