So congratulations to Pete for taking the lead in explaining why the Democrats’ semi-abandonment of the FILIBUSTER was stupid and will probably benefit the Republicans over the long term.
Randy Barnett, for one, cited Pete as the expert on this issue. Randy, like most libertarians, has defended the filibuster over the years as yet another counter-majoritarian check in our system. The filibuster results in fewer LAWS (meaning less tyranny), and certainly sometimes has produced more DELIBERATION.
On the other (and more important) hand, the abandonment of the idea of the filibuster will facilitate Republican majoritarianism, if and when that party gains control of the presidency and the Senate again. That means, of course, more libertarian (or, even better, originalist) members of the Court. So far, of course, Supreme Court nominations aren’t cover by “the Democratic power grab,” but there’s no reason to believe that they won’t be soon.
Let’s face it: The FILIBUSTER isn’t in the Constitution. The Senate is supposed to be deliberate, thinking long-term because of the senators’ long terms. But it’s also supposed to be majoritarian. And that means, in today’s context, Obama’s judicial nominees should be confirmed.
It’s true that the Court is much more ideological than the Founders had in mind. That’s because it’s been politicized by judicial activism in the service of using the 14th amendment to transform state law. The liberals are ideological. So too are libertarians like Randy. Even the more properly restrained forms of originalism are bones of theoretical contention.
That’s just the way things are these days. So the Republicans should be just as aggressive as the Democrats in campaigning on controlling the presidency and the Senate in the service of transforming the Court. And, as has often been pointed out, the Republicans have been lesss resolute than the Democrats in using the filibuster to block appointments by their ideological adversaries. The Republicans have erred even more greatly by not making the Court a key campaign issue.
The filibuster can be defended as a way of facilitating compromise. But in a democracy, legislative majorities shouldn’t have to compromise with legislative minorities. And there are other checks actually in our constitutional system for slowing down or moderating change we don’t believe in.
Elections should have consequences. And both parties should mainly be about winning elections.
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