WASHINGTON -- With Republicans inclined to change Senate rules to make filibusters of judicial nominees impossible, Democrats have recklessly given Republicans an additional incentive to do so. It is a redundant incentive because Republicans think -- mistakenly -- that they have sufficient constitutional reasons for doing so.
Today 60 Senate votes are required to end a filibuster. There are 55 Republican senators but not five Democrats who will join them. Republicans may seek a ruling from the chair -- Vice President Cheney presiding -- that filibustering judicial nominees is impermissible, a ruling that a simple majority of senators could enforce.
Democrats say they will retaliate by bringing the Senate to a virtual halt -- easily done within Senate rules. Republicans rejoice that such obstructionism would injure the Democrats. But conservatives will come to rue the injury done to their cause by the rule change and by their reasoning to justify it.
Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.
Some conservatives say the Constitution's framers ``knew what supermajorities they wanted'' -- the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc. -- therefore other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress ``may determine the rules of its proceedings.''
Some conservatives say there is a ``constitutional right'' to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.
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