Sunday, May 01, 2005

Filibuster Nonsense

Bill Kristol in The Weekly Standard,

What's really going on here, of course, is this: President Bush, having
been elected and reelected, and with a Republican Senate majority, wants to
appoint federal judges of a generally conservative and constitutionalist
disposition. The Democrats very much want to block any change in the character
of the federal judiciary--a branch of government they have increasingly come to
cherish, as they have lost control of the others. It's a political struggle, not
unlike others in American history, with both sides appealing to high principle
and historical precedent.

But it happens to be the case that Republicans have the better argument
with respect to the filibustering of judicial nominees. The systematic denial of
up or down votes on
judicial nominees is a new phenomenon. Republicans are
right to say that it is the Democrats who have radically departed from customary

More important, perhaps, the customary practice of not filibustering
presidential nominees--whether for the judiciary or the executive branch--is not
a mere matter of custom. It is rooted in the structure of the Constitution.
While the filibuster of judges is not, in a judicially enforceable sense,
unconstitutional, it is contrary to the logic of the constitutional separation
of powers.