Senate showdown continued?

Very interesting piece on judicial confirmation by T.R. Goldman. Even though the Democrats lost seats in the Senate in November, they're still numerous enough to filibuster and chances are pretty good for continued blocks on several of the judicial nominees President Bush has named and reupped. Still, a few things have changed, including the appearance of the publicity-friendly "nuclear option" (should it be the "nucular option"?) of disallowing filibusters of judicial nominees.

This piece is nice, because it brings out several of the wrinkles in this issue that are smoothed over in a lot of the journalism I've seen. Filibusters and the nuclear option (I'll address the Republican preference for "constitutional option" in a few moments) both have potential political and legal consequences. Also, as Goldman notes, even with 55 votes the GOP can't guarantee decorum due to the Senate's collegial nature. Since much of its routine business proceeds under unanimous consent agreements, Frist will have to change a lot more than just the rules for judicial nominees to prevent Democrats from frustrating Bush's domestic agenda a lot more than they will anyway.

As contentious as the Senate is likely to get in the near future, even an attempt to exercise the nuclear option will lead to war on the floor. Minority rights in the Senate get a lot of rhetorical support from parliamentarians who argue that extended debate and collegiality are part of the tradition of the body and that they distinguish it from the less gentlemanly House of Representatives. Still, the existence and use of minority rights are undoubtedly partisan and outcome-oriented. With all the mayhem that Bush wants to do in the next couple of years domestically, he'll need a Senate that can actually move legislation, and that won't come without some compromises, maybe the kind of compromises on judicial nominees that Goldman elaborates in the article.

During the last four years we heard a lot of noise from Republicans about the impropriety, even the unconstitutionality, of using filibusters to block judicial nominees. Now, impropriety is in the eye of the beholder to a large extent when you're talking about politics, but the claim that it's unconstitutional rests on the argument that the Senate's constitutional function of providing "advice and consent" to appointees of the president carries with it an affirmative duty to act on nominees. Bush's use of recess appointments to overcome the filibusters of several nominees weakens that case, especially given the liberal definition of "the Recess of the Senate" the president has been using. The core of the argument, however, is that preventing votes on a nominee hides the blame for a particular action, like the failure of a nomination, and frustrates the ability of the electorate to discipline senators for unpopular votes. However, Republicans are arguing now that filibustering itself is an unpopular activity with its own political consequences, pointing to the defeat of Tom Daschle as an act of voter discipline for obstructing judicial nominees. There are still arguments to be made that the Senate has a duty to hold up-or-down votes on nominees, but to embrace it you have to confront the possibility that many other functions served and powers enjoyed by various branches are not discretionary.

Naturally, the Democrats have pointed out that the Republicans delayed action on Clinton nominees through failing to move them through committee and that the only difference is the means by which a majority and minority accomplish what they want, which is to prevent an opposing-party president from being able to fill judicial seats permanently. Everybody seems to think this is bad, but I'm actually not so against it. It would be a disaster for judicial independence if presidents named a substantial number of judges through recess appointments, but the political costs of a largely temporary judiciary should prevent that. A more realistic and optimistic consequence is that judicial nominations return to being the currency of political horse-trading. Sure, it's possible that the competence of judicial appointments might suffer, but recent research suggests that the focus on the ideology of judicial appointees by presidents has actually led to the same thing.

It may sound unenlightened, but maybe it's time for judicial nominations criteria to de-emphasize comprehensive jurisprudential philosophy and turn toward function. Critics on the left and the right have made strong arguments against a merely functionary Court and even against too much emphasis on "mere" competence as a sufficient criterion for exercising judicial power, but if a little more focus on function could reduce the pressure that's building between the executive and Senate (even during unified government) I'd take the trade.