Quick Quiz

Suppose it's the year 2009, and a Democrat is in the White House, with a Democrat-controlled Senate. Let's suppose that the President nominates a batch of federal judges, and a handful of the nominations stall in committee because of either filibusters or threats of filibusters by Republicans. In such a scenario, is it more likely that:

a) the Dems would use the nuclear option to end filibusters and get their nominees on the bench; or
b) the Dems would first call the Republicans hypocrites, and then get their nominees on the bench.

Just, you know, something I've been wondering about.

It looks like Senate Repubs have finally shown enough spine for long enough that Senate Dems are letting a formerly-filibustered Bush nominee through.

"We know the difference between opposing nominees and blocking nominees. We will oppose bad nominees, but we will only block unacceptable nominees,' [Harry] Reid said."

Reid did not, however, go on to explain what was unacceptable about Thomas Griffith for two years that is now acceptable. And frankly, I don't expect him to explain any such thing. All he's done it picked one of the lesser-known names from the list and used it to both back away from the line in the sand and to get a little ammo to hurl at Repubs for the rest of the pending show-down. Expect to see Reid or other prominent Dems say something to the effect of "See? We were reasonable about Griffith!" in the next little while. Of course, there's nothing reasonable about it. They're playing nominees like cards in poker, which is no more and no less than what I've come to expect from my elected representatives.

Here's the kicker:

"Griffith was the Senate's general counsel during President Clinton's impeachment and became Brigham Young University's general counsel in 2003."

What!?! They're letting a Mormon on to the federal bench? Have they learned nothing?

And this old chestnut:

"Democrats have threatened to block again the seven whom Bush renominated this year, as well as future ones they consider outside the mainstream of legal thinking."

The first problem is that if a minority group in Congress gets to decide what "the mainstream" is, we have a serious inversion of the majority/minority dynamic going on, here. The fact that Reid et al are in the minority of Senators (and Reps, and governors, and White House staffers) suggests they shouldn't be the final arbiters of "mainstream" thought. And the second problem is that this sort of behavior is simply unjustifiable, historically. If hard-core ultra-liberal and radical feminist Ruth Bader Ginsburg got confirmed by almost every Republican, it means the Senate is simply not used to oppose candidates on ideological grounds. If hard-core liberal Stephen Breyer got confirmed by a slightly thinner margin, it's because Republicans don't use ideology to block judicial nominations. If hard-core liberal David Souter got confirmed -- okay, bad example. That just means Senate Republicans don't know how to do background checks.

Liberal response: But didn't Republicans filibuster Abe Fortas?

Yes and no. He was already on the Supreme Court; he was filibustered when President Johnson tried to elevate him to Chief Justice. For more background on the Fortas filibuster, look here, especially the second-to-last paragraph. If you ask today's Democrats why they oppose Bush nominees, it's for ideology, plain and simple. But the Fortas nomination was opposed because:

"...as a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support."

There are genuine separation of powers concerns here, as well as concerns about this guy getting serious money on the side. Yes, the guy was a hard-core lib, but Johnson nominated him because in spite of his liberal views, he had a realistic shot at the nomination.

"The president took encouragement from indications that his former Senate mentor, Richard Russell, and Republican Minority Leader Everett Dirksen would support Fortas, whose legal brilliance both men respected."

So the Fortas filibuster simply does not compare to what's going on in the Senate these days.

"Frist and Reid have rejected compromise offers from their counterparts, with Frist insisting on confirmation votes on all judicial nominees and Reid insisting on Democrats keeping their ability to block Bush nominees."

Little as I care for Reid, I'm a little disappointed that Frist didn't try a little harder to work out some middle ground. True, Repubs are in the majority. True, the Constitution doesn't require a super-majority in the Advice and Consent clause. True, Dems are acting like petty obstructionists and offering nothing of substance. And yet I still think there is much virtue in holding to tradition. It may be that American society is rapidly sliding into such a state of polarization that traditional notions of Senate comity will soon be out-moded, but that doesn't justify hastening the effect.