November 22, 2013
Mitch McConnell (Andrew Harrer/Bloomberg)
Mitch McConnell (Andrew Harrer/Bloomberg)

The partial end of the filibuster has inspired a good deal of wailing and garment rending among Washington establishmentarians, who see it as only the latest sign of the demise of bipartisanship and comity in the Senate. Putting aside that there hasn’t been a scrap of bipartisanship in Washington since January 2009, criticism of the Dem decision to go nuclear is, in effect, tantamount to legitimizing, or at least accepting, the Republican position.

The choice Dems faced was very simple: Either they accept the blanket GOP filibuster designed to block Obama from filling any vacancies on the second most important court in the country — one pivotal to the success of his agenda – or they change the rules.

Mitch McConnell gave the game away with this particular quote about the nuclear option:

This is nothing more than a power grab in order to try to advance the Obama administration’s regulatory agenda.”

Basically, he is right! In order to advance any prayer of a second-term agenda (most importantly, new rules on coal-fired power plants), Democrats need to use executive authority, and filling empty seats on the D.C. Circuit Court is key to protecting those actions in court.

The flip side of McConnell’s quote — the beauty of it — is that he is tacitly admitting that his party’s filibustering of every nominee to the D.C. Circuit was not just about the size of the court, but was also a power grab of its own, one designed to stymie Obama’s regulatory agenda. Republicans don’t have enough members to defeat nominees on a straight vote, so they’ve been using the process to stop them from getting one.

Which power grab is more legitimate? That depends on one’s priors and contingent factors. One could point to the fact that Obama won the election, and that presidents are supposed to appoint judges; it’s how the system operates on the most basic level. Or to the fact that the filibuster is a historical accident that has nothing to do with the Constitution. Or to the fact that according to the Congressional Research Service, nearly half of cloture motions on judicial nominations since 1967 have occurred under Obama.

What’s the argument in defense of the GOP power grab? Notably,  pundits who are bemoaning the Dem decision to go nuclear haven’t been offering one. Instead, they admit that Republican obstruction was unjustified, but still blame the Democrats simply because they supposedly worsened D.C partisanship by doing something in response to that unjustified GOP obstruction. Both sides should have come to a compromise, they say. But what is to be done when one side’s position is that important judicial vacancies shall remain empty simply because filling them would help advance Obama’s regulatory agenda? They don’t say.

Establishment pundits seem destined ever to pine for a mythical Golden Age of Congress when Senators hashed out deals over steak and cigars. But insofar as those days ever existed at all, it hasn’t been for thirty years or more. So let’s not shed any tears about the partial end of the filibuster. This is about giving the American government an angioplasty.

Yes, now that the judicial filibuster is no more, it may be that Republicans will appoint a bunch of crazed right wingers to the bench if and when they win another election.

But, you know, that’s how democracy works.