I have not felt the need to post much on the ongoing conflict over judicial nominations because others far more qualified have it well covered. See especially Larry Solum and Randy Barnett and those they link. I am struck by one inconsistency, however, that has not received as much attention as it may deserve.
Ever since the late, unpleasant imbroglio over the 2000 election results we have been exposed to still bubbling Democratic anger that Bush’s election was illegitimate. Some have argued that the Electoral College that allowed this unfair result is anachronistic and should be scrapped. Others maintain that as a president elected with fewer votes than his opponent Bush should have deferred more often to the Democratic minority in Congress, that he has no mandate to insist on his own preferred nominees, etc., etc.
Fine. Even though I don’t feel their pain, I understand their argument. What I don’t understand is how the Senate minority, the Democrats, can, at least with a straight face, turn around and rely on the Senate’s hoary and racism-encrusted filibuster rule (the same one that blocked civil rights legislation for so long) to prevent the majority from even having a vote on the president’s judicial nominees. The Electoral College should be scrapped because it is an obstacle that interferes with the right of the majority to have its way, but the Senate filibuster, which enables a minority to thwart a majority, is sacrosanct?
The Senate Dems claim that Bush’s nominees are “out of the mainstream,” but if that were so they wouldn’t fear a vote of the whole Senate. Certainly no one “out of the mainstream” could win majority approval in an up or down vote, right? It would appear that the real fear of the Senate Dems is not that these nominees are “out of the mainstream” but that they are in it, leaving the Dems little choice but to act like a political version of the Army Corps of Engineers on a rampage and attempt to divert the stream, or dam it up.
Ironically, the Senate Dems, without admitting it, have revived John C.Calhoun’s theory of the “concurrent majority,” the view that an energized and adamant minority should have a veto over the majority. But then, that is not really ironical. It is altogether fitting and proper, since it is the same theory that an earlier generation of Senate Democrats from the South relied on in using the filibuster to block civil rights laws. Since the current crop of Democrats, like their Southern predecessors, now defend racial distinctions and thus have confirmed the worst predictions of the earlier Calhounians, who warned after all that legislating equality would lead inexorably to promoting racial preferences, there is no reason they shouldn’t adopt their tactics as well.