Lifetime judges as the ultimate game changers

By Fester: Michelle Malkin is engaging on the filibuster question and she seems to be in basic agreement with BJ's argument that there is a place for a counter-majoritarian tool. However when she expands her thought process, I am confused a bit, and would like some clarification as to what is appropriate to filibuster.

She writes:

Like BJ and Jazz, I support the filibuster for legislative purposes. It allows the minority in the Senate to have an opportunity to block bad legislation....

Presidential appointments, to the judiciary or the federal bureaucracy, are a different matter. Having participated in the “nuclear option” debate in 2005, I still think that a filibuster on presidential appointments is inappropriate and should be discarded. A president should have the presumption of choosing his own Cabinet and advisors as well as judges. Elections have consequences, and as Republicans and Democrats point out in every campaign, that’s one of the biggest.

To me, it seems like she is focusing on the temporary over the permanent. 

Bad laws in a non-filibustering world are 'easy' to reverse if they are amazingly dumb, counter-productive, unpopular and pointless. Political pressure and one or two electoral wipe-outs will usually align the incentives to course-correct.

For instance if the 2005 Congress passed the equivilant of the North Dakota abortion ban that is currently under consideration and IF that was not tied up in the courts for the next decade, the Republican losses in 2006 would most likely be even larger as districts like WA-8, PA-6, and CT-4 would have swung Democratic instead of hanging on in nail biters. We saw this in another form with the Lily Ledbetter Act which was quickly approved in 2009.  The legislative approval process to reverse embyonic 'rights' would have been such that President Obama would have been sworn in, and signing the relevant law within minutes of officially being president.

The normal political process can quickly self correct in a filibusterless world when a very unpopular law is passed. And for conservatives, imagine if the Democrats passed the Gun Confiscation, Mandatory Gay Marriage Promotion while all Straight Marriage Dissolve and Department of Peace Establishment Act next week --- how quickly would that act be repealed in January 2013 when there are Republican supermajorities in both chambers and a Republican president?

I can see the same argument on filibusterless political appointments to the executive branch bureaucracy. Normal political incentives should prevent horse lawyers from heading FEMA. Minority Senators sitting in opposition to the White House should make a very strong and very pointed argument against really bad appointees in the attempt to force a splinter majority coalition to vote against the intolerable or to create significant political pressure to prompt a withdrawal.  But, in general, presidents should have a good deal of discretion on manning the executive branch. The advise and consent dynamic changes dramatically when it is a divided government but basically, I can agree with Malkin on this one.

However, her logic flow, in my mind, breaks down when it comes to the Federal bench, especially at the Supreme Court and Appellette levels. Let me steal the demolish all filibusters proponent Publius's thoughts from Obsidian Wings:

There is one exception though – one context where I would continue supporting the right to filibuster. And that’s judicial nominations. I actually first read this idea from Kaus, but I think the logic is pretty sound.

Article III judges serve for life – it’s practically impossible for a new majority to undo a prior president’s appointments. And federal judges are of course extremely important – they are the nation’s only unaccountable policymakers (they’re accountable in theory via impeachment, but not really in practice).

As I initially wrote in response to BJ, the Constitution as well as the formal and informal norms that define our political space do not want to be whipsawed back and forth on game changers:

I understand the threat of the filibuster on Supreme Court nominees, appeals court nominees, and major direction changers in public policy such as a decision to go to war or to pass the largest discretionary spending package in nominal terms. Those are game changers, and our system does not want game changers happening every six months.

Judges are effectively unaccountable (1 or 2 impeachments per generation is not a political constraint) and they have indeterminate length of stay and highly random openings. For instance, in six years, Richard Nixon appointed four Supreme Court Justices while in the most recent twelve years of Democratic Presidencies, Carter and Clinton appointed two justices. Looking at ages and health, it is plausible for President Obama to have three or more appointments in four years, and potentially five or six in eight years. Those type of bloc replacements are game-changers and if they can be railroaded in on 51:49 votes, the next thirty years are severely impacted. I'll probably like the results, but the process is against the implicit constitutional norms of self-stabilizing processes.

I would imagine Malkin would like some leverage such as a filibuster to insure against the Alito-Thomas-Roberts-Scalia faction collectively getting run over by a DC Metro-bus next week as they get pizza in between oral arguments. Liberals wanted that same type of insurance between 2002 and 2006 to insure that a freak waterskiing accident did not kill Ginsburg, Breyer, Souter and Stevens. These are extreme and absurd scenarios, but if there is a case for a counter-majoritarian rule, it is to prevent massive whipsawing off unusual and random events which then locks into place a peculiar political arrangement for a generation.

(BTW --- who would have laid odds on a favorable, non-snarky link exchange between the 'Hog and Michelle Malkin as of last week?)

Comments

[BJ Bjornson]

Um, the byline of the Hot Air post is Ed Morrissey, not Michelle Malkin. Probably accounts for the non-snarky, favourable linkages, as Ed's a great deal less partisan than Malkin.