Filibusters are not sacrosanct, but they're useful

  President Bush has said his favorite Supreme Court justices are Antonin Scalia and Clarence Thomas, a harbinger that terrifies his opponents but gives me hope. Scalia and Thomas are the justices who are most inclined to insist that Congress stick to its enumerated powers, and they have often (although not always) defended the rights of vulnerable minorities, including advertisers of politically incorrect products, operators of controversial websites, owners of regulated land, and (in Scalia's case) citizens classified as "enemy combatants."

 If Bush's judicial nominees are similar to Scalia and Thomas, getting them confirmed may be worth forswearing the filibuster as a weapon against less desirable nominees by Democratic presidents. On balance, it may lead to a less intrusive, more restrained federal government -- assuming the legislative filibuster can be preserved.

 Notwithstanding the lofty rhetoric on both sides of the controversy over judicial filibusters, it comes down to a prediction about which rules will give your team an advantage. I can't bring myself to root for the Democrats or the Republicans, although I think the latter's judicial nominees are more likely to enforce constitutional limits that have been neglected for too long.

 Any inclination I might have had to take sides was dampened by the bipartisan insincerity of the filibuster debate, which has ascended into meta-hypocrisy: The Republicans have no business accusing the Democrats of saying one thing and doing another because they are just as guilty of the same sin, and vice versa.

 The Republicans pioneered the use of filibusters against judicial nominees with their successful 1968 effort to stop Abe Fortas from becoming chief justice of the Supreme Court, which they now say doesn't really count because Fortas might not have been confirmed even if he had received a vote. Obviously, his opponents thought there was a good chance he would be, or they wouldn't have bothered with the filibuster.

 The Democrats, unable to cite a single real-life filibuster of which they approved before they started filibustering Bush's circuit court picks, have turned in desperation to the Frank Capra movie "Mr. Smith Goes to Washington," featured in a People for the American Way commercial. What's next? "Rosemary's Baby" as an argument for abortion rights?