by Matt Barr

Retirement of Pickering and filibusters

I saw this posted at The Corner Thursday then never came across it anywhere else -- not that I was looking. "Charles Pickering, the Mississippi judge whose nomination to the Fifth Circuit Court of Appeals was filibustered by Democrats, and who was then placed on the court by recess appointment, has announced that he will retire rather than ask to be re-nominated for another attempt at Senate confirmation," wrote Byron York at The Corner, and I decided to quote him rather than inartfully paraphrase. In pertinent part Pickering's retirement statement read:

The bitter fight over judicial confirmations threatens the quality and the independence of the judiciary. The mean-spiritedness and lack of civility reduces the pool of nominees willing to offer themselves for service on the bench. For the first time in the history of the Senate, judicial nominations were blocked by filibusters.

The recent election demonstrated that the American people rejected this unprecedented obstruction by the minority Senate leadership. Those voices will continue to be heard until the confirmation process is reformed and judicial filibusters ended.

Extreme special interest groups opposed my nomination primarily due to their hostility to any nominee with strong religious convictions who personally disagrees with them on abortion, marriage and references to God at public ceremonies and institutions. They demonstrate their intolerance and religious prejudices not just in opposing my nomination, but also that of the Catholic nominees who hold deep religious beliefs. These groups believe nominees with committed religious values are not qualified to serve on America’s federal courts, despite the fact that our judicial records, statements and testimony demonstrate a commitment to uphold the law and current precedents. These far left groups cowed Democrat leadership into opposing my nomination. In doing so, they pushed those Senators out of the American mainstream, some out of their Senate seats, and the Democratic Party out of entire regions of the country.

Yep. There has been a fascinating 180 done on filibusters by blue state academics, as has been pointed out at The Volokh Conspiracy and then, more recently (tipped to the link by Volokh again), by Sen. John Cornyn, who wrote letters to the editor of both the New York Times and the L.A. Times which unaccountably were not published. Read the whole post by Stuart Buck. Just to whet your appetite: A NYT editorial on November 28 said,

The Republicans see the filibuster as an annoying obstacle. But it is actually one of the checks and balances that the founders, who worried greatly about concentration of power, built into our system of government. It is also, right now, the main means by which the 48 percent of Americans who voted for John Kerry can influence federal policy. People who call themselves conservatives should find a way of achieving their goals without declaring war on one of the oldest traditions in American democracy.

Sen. Cornyn -- whose letter, again, has not been published -- replied in part:

I read with great surprise Sunday’s editorial praising the filibuster as a worthy obstructionist tactic in the United States Senate [Mr. Smith Goes Under the Gavel, November 28, 2004]. After all, it wasn’t long ago that the Times advocated just the opposite.

On January 1, 1995, the Times editorialized that it was “Time to Retire the Filibuster,” describing the tactic as “the tool of the sore loser” and “an archaic rule that frustrates democracy and serves no useful purpose.” Have times changed – or has the Times changed?

Sen. Cornyn goes on to point out that filibusters aren't "sacrosanct," and this century is the first time in our history they were ever used to deny judicial appointments the full Senate would have supported.

I doubt I would go as far as Edwin Chemerinsky, who, as the first Volokh post above points out, in 1997 seemed to support the idea that the 2/3 requirement for changing the filibuster rule is unconstitutional (remember, or note if you haven't clicked through the links, that Chemerinsky is now writing L.A. Times op-eds saying Republican opposition to filibusters is "obstructionist and disingenuous"). The Senate is constiutitionally empowered to make its own rules about how it does business unless otherwise specified in the Constitution. But to the extent they represent veto power for a minority of Senators over the will of the majority, they're nothing you want to trot out as an example of republican democracy at its finest.

I've written before that "outcome-based" Democrats don't seem to get that you need to have procedural rules in place that you are comfortable abiding by whether you're in the majority or the minority -- like, say, the Constitution of the United States. The NYT's, Chemerinsky's, et seq. bald reversal on filibusters is further demonstration of that point.

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