The "100 Hours" Proposal:

The NYT reports that last-minute talks to avert a "nuclear" showdown in the Senate over judicial nominees broke down. Commented Senate Minority Leader Harry Reid, "I have tried to compromise, and they want all or nothing, and I can't do that." This echoes Reid's earlier sentiment that Senate Majority Leader Bill Frist never offered much of a deal, but is that really so?

The deal Frist offered was a guaranteed minimum of 100 hours of debate before a vote on any contested appellate or Supreme Court nominee. At first blush, this seems like nothing at all. Who cares how long you talk if the end result -- confirmation -- is preordained. Yet I think this assessment overlooks an important point: 100 hours of floor debate is a substantial amount of time on the Senate calendar. If Frist held the Senate in session 24-7, it would still take over 4 days of debate to vote on a single nominee; 10 contested nominees would take over 40 days of the Senate doing absolutely nothing but debating nominees -- and this would almost certainly never happen. As Byron York pointed out, Frist's deal would almost certainly guarantee that some of Bush's nominees would not get confirmed (though the Democrats would not know which ones).

If this is the case, why did Reid reject the deal? I think the answer is the Supreme Court. While Frist's deal might prevent Republicans from confirming all of Bush's appellate nominees, it would enable the GOP to ensure the confirmation of any given single nominee. So, if President Bush were to make a Supreme Court appointment, his or her confirmation would be a sure thing so long as the nomination maintained GOP support.

While both sides frame the debate as one about current nominees, the offer and rejection of the "100-hour" deal confirms what many already knew: The judicial confirmation wars is all about Supreme Court nominations that are yet to come.

NYT on Filibusters -- Then and Now:

Today the NYT editorializes against elimination of the judicial filibuster. According to the Times' editorialists, the filibuster and other modes of obstruction are "all part of the Senate's time-honored deliberative role and of its protection of minority rights, which Republican leaders would now desecrate in overreaching from their majority perch."

In 1995, however, the NYT sang a different tune. In a January 1, 1995 editorial (posted on on NRO's Bench Memos here), the NYT hailed Senator Harkin's proposal to limit the filibuster.

For years Senate filibusters — when they weren't conjuring up romantic images of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate floor — consisted mainly of negative feats of endurance. . . .

Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes.

In 1995, the NYT endorsed a proposal for successively lower cloture-vote requirements to allow a determined majority to win the day, while still preserving the minority's right to prolong debate and voice its opposition. Senator Frist's 100-hours-of-debate proposal would produce the same effect, yet the NYT blasted this as a "No-Compromise Compromise" on May 3.

Senators of both parties have been inconsistent in their views of the filibuster. That's what one expects from politicians. Is it too much to expect greater consistency from the nation's one-time paper of record?

UPDATE: The LA Times, on the other hand, stands on principle and advocates eliminating the judicial filibuster even though it will allow the confirmation of judicial nominees it does not like.

NYT on Filibusters -- Continued:

Stone Court thinks there is no inconsistency in the two NYT editorials I cite below. Certainly, one could oppose the filibuster on principle, but still object to changing the filibuster rule by a simple majority vote, but this is not the Times' position.

As the excerpts below should illustrate -- and the full text of the editorials makes clear -- the gray lady has indeed changed her editorial position on the merit of filibusters. In 1995, filibusters were "negative feats of endurance" and "the tool of the sore loser." Today, filibusters are "part of the Senate's time-honored deliberative role and of its protection of minority rights" and "a necessary weapon." So while one could be both anti-filibuster and anti-nuclear option, that is not the NYT's editorial position.

In a related vein, one reader wonders why the current NYT editorial board should be bound in perpetuity to prior editorial positions -- after all, it's not the St. Louis Post-Dispatch. Fair enough, the Times can change its mind. But we're not talking about some long ago position -- this was 1995. Moreover, insofar as the NYT seeks to be a voice of principle, rather than partisan political interest, I think it is reasonable to expect a reasonable amount of consistency and frank acknowledgement when its views change.

NR on Filibusters:

The NYT is not the only inconsistent publication. NR flipped too — and more quickly — and is called on it in house.

Can these positions be reconciled? Maybe. If I understand NR's editorial position, it is that the filibuster is worth preserving and eliminating the judicial filibuster could lead to the elimination of the legislative filibuster, so the nuclear option is imprudent. Now that the GOP is on the brink, however, NR believes they must follow through. In other words, this was the wrong fight to have, but it's a fight the Right cannot afford to lose.

UPDATE: NRO's Cornerites discuss this question here and here.