Senate majoritarianism: Am I a hypocrite?

So, I am back after my finals-induced hiatus. And I pick up not too far from where I left off: the health care bill.

Four years ago, I participated in an interesting sort of protest called the "Frist Filibuster," in which members of the Princeton community "filibustered" by reading aloud from a podium in front of the Frist Campus Center. The protest was in opposition to the proposed "nuclear option," proposed by then–Senate Majority Leader Bill Frist, that would make it more difficult for Democrats to filibuster President Bush's judicial nominees. These days, I join the legions of those in favor of health care reform that day after day demonize the practice of the filibuster as anti-democratic and a danger to this country.

Did something change? Or am I just a hypocrite? Since I would rather believe the former than the latter, I'll try to give some of my reasons for changing my position, and you can tell me if they hold water.

(1) The numbers are different. In an earlier post, I described how filibustering Senate Democrats in 2005 represented approximately 50 percent of the population, whereas filibustering Senate Republicans in 2009 represent approximately 36 percent of the population. Thus, the majoritarian mandate in the Senate now is far greater than it was in 2005. While this is an interesting point, majoritarianism is majoritarianism, and I don't think this gives me much of a theoretical leg on which to stand. Something more is needed.


(2) Judicial nominees are different from policy decisions. This argument, I think, is a little stronger. First, judicial appointment is almost as far removed from popular voting as this country gets. The more democratic House has no place in the process. The system is designed to select intelligent, meritorious people without letting the popular majority influence the process. Thus, advocating for majority rule in the judicial confirmation process as it exists under the Constitution contains something of a self-inconsistency.

Furthermore, I would wager that the view of most senators is that federal judgeships are relatively apolitical positions. While I have been through enough law school to know that the idea that judges don't make policy is a myth, I also believe that most people who make it to the point of being appointed to a federal court of appeals or the Supreme Court are very smart, accomplished people who care more about good judging than pushing an agenda, and I believe this is what the Senate looks for in a nominee. If the Senate cannot get 60 people to agree to a nominee, then I would question that person's judicial philosophy and whether he would actually apply the law in good faith.

Policy, on the other hand, is political, and should be. Thus, the importance of majority decision-making in policy is greater than in judicial selection.

(3) The filibuster is a "good faith" weapon. The filibuster, as originally conceived, was a weapon of an oppressed minority. Until 1975, it actually took two-thirds of the Senate to cut off debate (see a good history here). It would only take 34 senators to prevent the passage of any bill. However, as the graph accompanying this interesting article, it did not become a regular part of politics until the last couple decades.

Now, one might argue that politics is politics, and that a political party has a right to use any weapon in its arsenal to further its political views. This is true, but the filibuster only exists because of quirks of Senate procedure (this is why the concept does not exist in the House). The filibuster has been allowed to exist so long, I imagine, because the first sign of abuse of the process would lead to its demise. Look how close we came to losing it in 2005 over what I see as good-faith disagreement over judicial nominees. As a quirk of procedure predicated on good faith, I believe the absence of good faith calls for its demise.