Ranking Filibusters: More Reasons Why the GOP Sucks
Hendrik Hertzberg on the New Yorker site breaks down the three types of filibusters used to stall executive action and the legislative process, and ranks them from most defensible to least defensible:
Senate filibusters allow a minority of the Senate, against the wishes of the majority, to do three things. Torpedoing a President’s nominee for a post in his Administration is the most indefensible of them. The President is separately (and more or less democratically) elected. He has a presumptive right to staff his Administration with like-minded officials. Also, an executive nomination is like a law that has a sunset provision: the appointment expires automatically when the Presidency changes hands. Filibusters of ordinary legislation are slightly less indefensible, because a law can always be repealed by a future Congress. (Of course, repealing a law is as subject to filibuster sabotage as passing one.) Filibusters of judicial nominees, especially of Supreme Court Justices, are actually the least indefensible of the three. The judiciary is the joint creation of the Presidency and the Senate (“advise and consent”). And judicial appointments are for life. They don’t expire every four years like Cabinet and other executive-branch appointees. They can’t be repealed. Once judges or Justices are on the bench, they’re there for good. (Or for ill.) The only way they leave office is if they die, retire voluntary, or are impeached—and the last impeachment of a Supreme Court Justice was two hundred and eight years ago. With judicial appointments, the stakes are higher. So it almost makes sense, arguably, for the barrier to be higher, too.
How easy would it be to employ the so-called nuclear option and get ride of filibusters altogether? Pretty damn easy:
On the floor, a Democratic senator would have raised a point of order. He or she would have asked the presiding officer (Vice-President Biden would want to be in the chair for this one) to rule that requiring a sixty-vote “cloture” before a nominee for an executive position can be confirmed or rejected by a simple majority is unconstitutional and, therefore, is out of order. The presiding officer would have so ruled. A Republican would have appealed the ruling. The ruling would have been upheld—by a simple majority. Presto chango.
Hertzberg is for employing the nuclear option, by the way. But he thought Harry Reid's compromise wasn't bad.
Now play ball.