The Volokh Conspiracy - Peter Rubin on Filibuster Deal:

I suspect that there's not much about the coming Supreme Court confirmation battle on which Peter Rubin and I will agree, but the fact that the filibuster deal will have little binding force on the nomination circus seems to be one.

Commenting on the same Washington Post story I referenced this morning, Peter Rubin argues on the ACS Blog that the impending Supreme Court nomination showdown makes clear that the filibuster deal was an "enormous win for the Democrats":

The Post's analysis, though, does not withstand scrutiny. Everyone knew at the time the compromise was struck that "extraordinary circumstances" were not defined; and everyone knew there might be a dispute about whether those words included, for example, replacing a moderate Justice with a very conservative one who would tip the Court's ideological balance with respect to certain fundamental constitutional values. * * * This leaves Democratic members of the Gang of 14 to decide for themselves what they believe qualifies as extraordinary circumstances, and to act as their consciences dictate with respect to the filibuster.

Hmmm, sounds familiar.

Rubin argues that the deal is a net winner for the Democrats, because it enabled them to preserve the filibuster until a more fortuitous time, in that his view is that the public will not stand for "changing the rules in the middle of the game" when it comes to the Supreme Court, and that the time for Republicans to strike would have been when the issue surrounded lower-scrutiny appellate court nominees.

He could be right, and I suspect neither of us have a great sense of how this would all play out across the country if the constitutional/nuclear option resurfaces, but my personal intuition runs the other way. My intuition is that to the extent that most people care, they will be more prone to seeing a debate over the filibuster and procedural gamesmanship as inside the beltway silliness. I think that the American public generally are not "proceduralists" when it comes to evaluating government activity and don't care too much about this stuff. Witness the hostility toward Gingrich in the 90s government shutdown, the popularity of guys like Arnie and Jesse Ventura in promoting themselves as a problem-solvers impatient with procedural obstacles, and the longstanding of Perot-types who oppose "gridlock" (otherwise known as bicameralism and separation of powers) and special interests. So, notwithstanding the possible fairness appeal of "don't change the rules in the middle of the game," my personal intuition is that a line of attack that tries to defend the filibuster in the context of a refusal to hold an up or down vote on a Supreme Court nominee strikes me as a loser for the Democrats.

In part this is because, as I noted some time back, the longstanding American tradition has been that where the filibuster has been abused to systematically frustrate the majority (such as with anti-lynching or civil rights legislation), rather than being used simply to promote true extended debate by the minority, my reading of the history has been that the response has been to change the filibuster rules to prevent future such occurrences.

Majority vote, up or down, has a very deep claim on the American imagination.

So, leaving aside whether it is actually an unfair changing of the rules in the middle of the game to invoke the constituitonal/nuclear option in the event of a filibuster of a Supreme Court nominee, my intuition is that is an argument that won't win with the public if it comes to that. It seems hard for me to see how it could be a winner for the Democrats to go to the public with the issue that ~~a new Supreme Court term should start one Justice down~~ the confirmation of a successor should be delayed because they oppose an up-or-down vote on a nominee.

I think the proceduralist arguments were losers when the Republicans made them when the Democrats controlled the Senate (after the Jeffords switch) and I suspect that they would be losers for the Democrats now. For better or worse, I suspect that the public has little patience for these issues when they seem to stand in the way of getting things done.

And while we're at it maybe we can come up with a new neutral term for whatever the "___ option" is.

Update:

Doh--A Commenter reminds me that O'Connor's resignation is effective as of the confirmation of her successor, so there wouldn't be a vacancy, just a delay in the confirmation of a successor. I apologize and have changed the post text accordingly.

	[Todd Zywicki, July 5, 2005 at 1:08pm] Trackbacks Peter Rubin on Filibuster Deal: I suspect that there's not much about the coming Supreme Court confirmation battle on which Peter Rubin and I will agree, but the fact that the filibuster deal will have little binding force on the nomination circus seems to be one. Commenting on the same Washington Post story I referenced this morning, Peter Rubin argues on the ACS Blog that the impending Supreme Court nomination showdown makes clear that the filibuster deal was an "enormous win for the Democrats": The Post's analysis, though, does not withstand scrutiny. Everyone knew at the time the compromise was struck that "extraordinary circumstances" were not defined; and everyone knew there might be a dispute about whether those words included, for example, replacing a moderate Justice with a very conservative one who would tip the Court's ideological balance with respect to certain fundamental constitutional values. * * * This leaves Democratic members of the Gang of 14 to decide for themselves what they believe qualifies as extraordinary circumstances, and to act as their consciences dictate with respect to the filibuster. Hmmm, sounds familiar. Rubin argues that the deal is a net winner for the Democrats, because it enabled them to preserve the filibuster until a more fortuitous time, in that his view is that the public will not stand for "changing the rules in the middle of the game" when it comes to the Supreme Court, and that the time for Republicans to strike would have been when the issue surrounded lower-scrutiny appellate court nominees. He could be right, and I suspect neither of us have a great sense of how this would all play out across the country if the constitutional/nuclear option resurfaces, but my personal intuition runs the other way. My intuition is that to the extent that most people care, they will be more prone to seeing a debate over the filibuster and procedural gamesmanship as inside the beltway silliness. I think that the American public generally are not "proceduralists" when it comes to evaluating government activity and don't care too much about this stuff. Witness the hostility toward Gingrich in the 90s government shutdown, the popularity of guys like Arnie and Jesse Ventura in promoting themselves as a problem-solvers impatient with procedural obstacles, and the longstanding of Perot-types who oppose "gridlock" (otherwise known as bicameralism and separation of powers) and special interests. So, notwithstanding the possible fairness appeal of "don't change the rules in the middle of the game," my personal intuition is that a line of attack that tries to defend the filibuster in the context of a refusal to hold an up or down vote on a Supreme Court nominee strikes me as a loser for the Democrats. In part this is because, as I noted some time back, the longstanding American tradition has been that where the filibuster has been abused to systematically frustrate the majority (such as with anti-lynching or civil rights legislation), rather than being used simply to promote true extended debate by the minority, my reading of the history has been that the response has been to change the filibuster rules to prevent future such occurrences. Majority vote, up or down, has a very deep claim on the American imagination. So, leaving aside whether it is actually an unfair changing of the rules in the middle of the game to invoke the constituitonal/nuclear option in the event of a filibuster of a Supreme Court nominee, my intuition is that is an argument that won't win with the public if it comes to that. It seems hard for me to see how it could be a winner for the Democrats to go to the public with the issue that ~~a new Supreme Court term should start one Justice down~~ the confirmation of a successor should be delayed because they oppose an up-or-down vote on a nominee. I think the proceduralist arguments were losers when the Republicans made them when the Democrats controlled the Senate (after the Jeffords switch) and I suspect that they would be losers for the Democrats now. For better or worse, I suspect that the public has little patience for these issues when they seem to stand in the way of getting things done. And while we're at it maybe we can come up with a new neutral term for whatever the "___ option" is. Update: Doh--A Commenter reminds me that O'Connor's resignation is effective as of the confirmation of her successor, so there wouldn't be a vacancy, just a delay in the confirmation of a successor. I apologize and have changed the post text accordingly.