Ted Kennedy is no Jimmy Stewart

Law professor Jonathan Turley invokes the film “Mr. Smith Goes To Washington” by way of opposing Republican plans to end the filibusters of President Bush’s judicial nominees. A less fantasy-based analysis might have focused more on the memory of Dixiecrats filibustering civil rights legislation.
Turley admits that the Republicans will have the law on their side if they get around to changing the rules:

The filibuster rule has always existed at the pleasure of the Senate, which sets its own rules under the Constitution. Thus, Democratic threats of a legal challenge are less than convincing. Moreover, the filibuster rule is unabashedly and undeniably anti-democratic.

He argues, though, that 40 Senators should be able to a prevent vote on judicial nominees through the filibuster mechanism because “when 40% of the Senate opposes a nomination, there is generally good reason for a president to rethink a lifetime appointment.” Has Turley been vacationing in Mongolia? These days, the fact that 40% of the Senate opposes Republican judicial nominees means only that the nominees are strong conservatives, and that leftist Democratic interest groups are insisting that they be blocked. Under Turley’s analysis, Republican presidents will be unable to put strong conservatives on the bench (barring a level of Senate control they have almost never achieved), except when liberal interest groups decide to grant a dispensation. It will also mean that Democratic presidents will be similarly constained with respect to liberal nominees. However, if the Democrats regain control of the Senate, they probablyl will not hesitate to change the filibuster rules, as they have been prepared to do, and have done, in the past.
Turley also notes that Republicans blocked a number of President Clinton’s judicial nominees. He acknowledges that they didn’t use the filibuster to do so, but suggests that there is “no practical difference” between the filibuster and killing nominations in committee, as the Republicans did at times. Turley neglects to point out that during the relevant period of the Clinton administration Republicans constituted a majority of the Senate and had the votes to defeat Clinton’s more liberal nominees. Today, by contrast, the Democrats, having fared rather poorly before the electorate, lack the votes to defeat Bush’s nominees. This makes the fiibuster of appeals court nominees, and the unprecedented defeat of the cloture motions that would end the filibusters, radically different from past practice. It also should require Turley to present a principled explanation of why, when the Republicans are sufficiently popular to elect the president and to control both Houses of Congress, the minority should be able to thwart on purely ideological grounds the ability of the president to place highly qualified candidates on federal courts. Referring to a movie, even one as great as “Mr. Smith,” won’t get it done.


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