IF YOU WERE A SENATE Democrat, you'd filibuster those Bush judges. Yes, you would. When it came time to vote on a targeted nominee in this new Congress, you'd know the deal. You'd know that Republicans would move for cloture to limit debate, and that if they succeeded, the nominee would get an up-or-down vote. But you'd also know that, under those very useful Senate rules, they would need 60 votes to prevail, and that because the Republicans number just 55, your side would win so long as at least 41 of you hung together.
Yes, if you were a Democrat, you'd be ready to say no and no and no again on those cloture petitions. You'd filibuster the Bush nominees because you'd know that if they were actually voted on, they'd be confirmed. Each and every one of them, by majorities in the mid-to-high 50s. And then for decades those nominees would sit on the circuit courts of appeal, which, because they have the last word on all but the handful of cases that go up to the Supreme Court, are very important indeed. If those judges performed as advertised, they would disdain the living, evolving Constitution that you so admire and would decide cases in the manner of Scalia or Thomas, Bush's favorite jurists, a horrible prospect.
Of course, if you were a Democrat (and even if you were a Republican), you'd also know that some judges don't perform as advertised and that some have demonstrated an unusual capacity to "grow
in office"--Washington shorthand for judges who grow less conservative. And you'd know that because they have that capacity, some Bush judges might turn out to be like, say, Souter or Kennedy, a pleasant surprise for your party. But as a Democrat, you'd know that you couldn't trust this president to put up too many Souters and Kennedys, and that you'd better be ready to say no whenever your leaders gave the signal--following due consultation, of course, with People For the American Way and the rest of the activist groups to whom your caucus has outsourced its critical thinking on all things judicial. As a Democrat, you'd know that your filibusters of circuit nominees would warm you up for the big game--the filibustering of Bush's Supreme Court picks.
If you were a Democrat, you'd know better about a lot of things said on your side. Of course you would. You'd know Schumer was a fool when he justified filibustering nominees by citing Madison's description of the Senate as a "cooling saucer," because you'd know (wouldn't you?) that the image came not from Madison but Washington, and that as he used it, it had nothing to do with filibusters, the first one of which took place only in the 1820s, and to stymie not judicial nominations, but legislation.
You'd know that the great constitutionalist Robert Byrd was speaking nonsense when he said that the Senate was "rejecting" Bush judges, because you'd know, wouldn't you, that the Senate was doing no such thing, but that a subset of the Senate, a minority made up exclusively of you and your Democratic colleagues, was engaged in a blocking action designed to prevent an up-or-down vote that, were it held, would invariably result in approval, not rejection.
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