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May 26, 2005

The fight over judges

There's a lot of ink that's been spilled in the past few days -- and a lot of ones and zeroes, too -- over the agreement reached by 14 senators on the filibuster of judicial nominees. I was too busy earlier in the week to get in at the shallow point, and the water's nearly tsunami deep now. The way it appears now, conservatives generally are angry, libertarians generally unconcerned, and liberals generally split. But the interesting thing is how many conservatives seem to think the deal ultimately helps conservatives (for example, Alexander McClure, James Taranto, and David Frum), or is otherwise a good thing (Prof. Bainbridge).

As I've said, the water's too deep with arguments back and forth for me to jump in here. So I'm not going to say a thing. Uh, except for this:

1. Count me on the angry conservatives' side. How many Republican senators do we need to reach 50 votes? On anything? And if the Republicans didn't have the votes to change the rule on filibustering judges, they should at least have used the *cough* Dick Morris option of forcing the Dems to hold a real filibuster.

2. This is another example of Republicans engaging in what I call "pre-emptive surrender."

3. No one ever went bankrupt betting on Republican stupidity and Democratic duplicity. Both bode ill here. Jeff Goldstein uses appropriately inappropriate language.

4. A deal in which everyone has a different personal interpretation is a ticket to a protracted war. Just look at UN Resolution 242. I'll believe this can work when Miguel Estrada is on the bench.

5. Any time John McCain looks happy, we should all check our wallets.

6. Any time John Warner pontificates, a conservative judicial nominee bites the dust. Just ask Robert Bork.

7. Any time Arlen Specter is involved, he tries to make up to the Left for having exposed Anita Hill.

8. Conservatives who defend the filibuster on the ground that it is inherently conservative, in that it tends to prevent the federal government from acting fail to distinguish between legislative filibusters, which are at least consistent with the constitutional structure limiting legislative action, and filibusters of nominees, which are not. Or they argue that there's no significant distinction. But Senate procedures, like any legal matters, and hip-deep in distinctions, some so arcane it makes your teeth hurt.

9. Those who defend the filibuster on judicial nominees out of concern that there will be a time when Republicans will need it because they are in the minority fail to realize that Republicans will never use it when they are in the minority. Does anyone remember that Republicans were in the Senate minority for the better part of 40 years, including the first two of Clinton's first term? How many filibusters did we have then?

10. Republicans who cite some higher principle violate Attila's Second Law of Politics -- "Whoever is principled loses." (I'd better explain this before people take me too literally. Principle is good; it is admirable; it is needed. But politics is a rough business, and if one side repeatedly hits below the belt, it will win if the other side refuses to drop the Marquis of Queensbury rules out of principle.)

Finally, at least some conservatives have maintained a grim sense of humor. Check out this spoof from the Freepers:

July 3, 1776 - Philadelphia

Moderates Negotiate Deal with King George III

In a last minute deal with Parliament, a group of moderates in the Colonies have reached a compromise agreement to avert war.

The terms of the deal are still sketchy, but some details are known. An anonymous source close to the negotiations has confirmed the following:

1. Parliament agrees to allow three Colonies to become independent: Massachusetts, New York, and Pennsylvania.

2. The signatories make no comment one way or the other regarding Maryland and Virginia.

3. Parliament agrees to not issue new taxes except in extraordinary circumstances.

4. In light of the spirit and continuing commitments made in this agreement, the signatories commit to oppose war with the Kingdom that would force independence of other Colonies.

We encourage the King and members of the Parliament to consult with members of the Colonies prior to enacting new taxes and levies.
Hat tip: fee simple.

As I said, I'm not going to say a thing.

UPDATE (5/27): Mickey Kaus refutes John McCain's assertion that this deal takes money out of the process.