The Political Spectrum

Stephen Bainbridge is one of the best legal bloggers around, thus his analysis of the filibuster deal is that much more maddening. Bainbridge has an unfortunate tendency to scoff at conservatives when they disagree with him, and this is more of the same as he basically tells us all to chill out. He turns to selective quotations of Russell Kirk to inform us all of how unconservative we're all being. But the very quotation he uses demonstrates why we are in the right.

Conservatives are champions of custom, convention, and continuity because they prefer the devil they know to the devil they don’t know.

... Burke’s reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to he gradual and discriminatory, never unfixing old interests at once.... In politics we do well to abide by precedent and precept and even prejudice, for the great mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any man’s petty private rationality.

... Any public measure ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity. Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away. As John Randolph of Roanoke put it, Providence moves slowly, but the devil always hurries.

Bainbridge uses these quotations as evidence of why breaking the filibuster is both wrong politically and principally. And yet is not our insistence on maintaining two plus centuries of precedent the very definition of conservatism? It is the radical left that is breaking with tradition in utilizing the filibuster to require a supermajority to confirm judicial nominees.

Bainbridge then offers a profoundly political rationale for preserving the filibuster. Even though most conservatives would only do away with the judicial filibuster (yours truly excepted, I have no respect for any filibuster - it is an extraconstitutional mechanism that goes far beyong merely tempering democratic exuberance - it simple tramples majoritarianism, and as such is an extreme measure that goes too far), Bainbridge insists that it is quite probable that all filibusters could be eliminated.

Even if the GOP resisted that temptation, what happens the next time the Democrats control the Senate? A GOP-established legislative and institutional precedent for abolishing the filibuster as to judicial nominations would make it all that much easier for the Democrats to do the same as to nominations or legislation. (Imagine President Hillary with a 50-50 Senate split and, say, Mark Warner as VP. What will prevent HillaryCare II if we don't have the filibuster then? Our slim majority in the House?)

My answer: so what? If the principle is wrong should we maintain it as a prudent political device because maybe, just maybe the Democrats will one day again control the Senate? Does Bainbridge, or anyone else for that matter, truly believe that the filibuster is the only thing keeping us away from the morass that is Hillarycare ? I seem to recall Democratic majorities in both Houses the last time that was tried, and it went nowhere in either place.

I completely sympathize with the conservative argument that the filibuster slows down the Senate's business, and there's nothing more a conservative appreciates than slow change. But the Framers didn't necessarily want the government to come to a complete standstill. The very reason the Framers established the Constitution was to provide a more efficient federal government than existed under the Articles of Confederation. The national government could do nothing under the Articles without the unanimous consent of all of the states. As a result, nothing was accomplished. The Framers remedied the situation by creating a Constitution that corrected the problems of the AoC while at the same time limiting the scope of the Federal government's powers, and also designing institutional mechanisms - the electoral college, a bicameral legislature, a Senate appointed through indirect election, separation of powers, etc. - meant to put the brakes on democracy. Quite frankly, if those mechanisms aren't enough, then there's just no point in fighting anymore.