My problem with nearly all the discussion of the “nuclear option” — reducing the number of Senators required to approve the nomination of federal judges from 60 to 50 (not long ago it was reduced from 66 to 60) — is that this sort of parliamentary, procedural change strikes me as a conventional weapon, not a nuclear one.
Yet to read the editorial on this matter in this morning’s Washington Post is to get the idea that the WaPo editors view this rule change as tantamount to strapping sticks of dynamite to the foundations of our constitutional order.
It’s rarely a good idea to fashion long-term institutional change for short-term tactical benefit. Nothing illustrates that more clearly than the positions of convenience both sides now take on what should be an issue of principle.
Well, sure. In addressing this issue both political parties have been, well, political. Just as they have been over the years with other momentous issues where they have played musical chairs: states rights, judicial review, executive power, the value of the electoral college, whether or not the state can discriminate on the basis of race.
The WaPo is being silly when it describes, accurately, the problem of undue partisanship as bi-partisan but then piously preaches that the current Republican inclination to end judicial filibusters is “a one-sided solution to a two-sided problem [that would] extend the unfairness and partisanship and guarantee another round of recrimination.”
What’s “one-sided” about it? The new rule would also prevent a future Republican minority from blocking appointments.
Ending judicial filibusters may or may not be wise, but the WaPo and many others have gotten themselves more worked up about the Senate rewriting its own rules — which it clearly has the authority to do — than they are when the courts rewrite the Constitution itself.
