Hypocrisy, the future of limited government, and the Senate filibuster

25 Nov

The New York Times and Senate Democrats have successfully argued for an end to the use of the Senate filibuster as a means of blocking executive branch nominations to high offices (like the federal judiciary).  This is all a matter of political expedience, of course, as they were both decidedly opposed to such a policy change when the Democrats as a Senate minority developed this tactic to block Bush’s judicial nominees 10 years ago.  For its part, the NYT editors also have had a change of heart on the matter.  Once indignant about Republicans invoking the “nuclear option” (ending the filibuster) — concerned such as they were with an executive that might become too powerful, the protection of minority rights, etc. — they now see it as a very reasonable necessary institutional change for the purposes of good governance.  Give them credit, unlike the Republican majority under Bush, when confronted with the institutional dangers of reversing this rule they themselves made 10 years ago, Senate Democrats didn’t back down and boldly moved forward with the rules change.

But the concern that Democrats raised in years past was and is real (a concern that ironically Obama raised numerous times against an ever expanding executive branch, though now he personally lobbied fence-sitting Senators on his side for the nuclear option).  The Senate is designed to prevent twin evils.  Being elected every 6 years, with staggered terms, and equal representation among states, the Senate stands against the tyranny of the majority that might come through the more democratic but potentially passion and faction driven House.  On the other hand, under its advice and consent powers, confirmation prerogatives, impeachment power, the Senate stands against a tyrannical executive that might come through a presidency acquiring more and more unilateral decision-making (growing insulated appointment power, executive orders, selective enforcement of the law, executive orders, executive privilege, war-making, bureaucratic discretion, etc.).

Though it isn’t a constitutional law, the filibuster is an old Senate tradition, and whatever we may think about the expedience of reversing this rule (putting aside the partisan political opportunism and hypocrisy at play), make no mistake, such a reversal of procedure will enhance the power of an already expanding executive branch at the expense of institutional checks aimed at limited government that historically has been brought by Congress and the States.      

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