Sleight of hand

A rather silly piece by Hendrick Hertzberg in The New Yorker this week. The silliest thing is he wrote it at all. You see, it's about filibusters, which he's against, and Republicans, which he's also against. Trouble is, Republicans are against filibusters, so the whole piece is at odds with itself.

In any case, he has to use a lot of sleight of hand to try to make his case, and insult Republicans at the same time. Let's look at some of the highlights.

He claims the hold-up on judicial confirmations for Bush and Clinton are a tie, since the numbers are about the same. He doesn't mention that in Bush's case, the Dems are able to use the filibuster to stop judges who would easily win a vote in the Senate. (This is small potatoes, because there are lots of ways to look at the confirmation crunch, but Hertzberg starts with it.)

He tries to say it's not really a tie since Clinton nominated moderates while Bush nominates conservatives, rarely moderate, often extreme. Even if it were this simple, it would be a meaningless argument. In the federal courts, "moderate" generally translates to those who agree with the Left, especially on controversial social issues. "Moderate" judges declare any hindrance to abortion unconstitutional, no matter how small, no matter how popular, such as parental notification and late-term bans. Those who would merely allow such laws (forget about letting people vote on abortion itself, much less banning it by judicial fiat) are condemned as right-wing extremists. "Moderate" judges allow the government and others to take one's race into account as much as needed in the name of "diversity" or historical discrimination. Meanwhile, those who, like the civil rights crusaders of the 40s and 50s, believe in a color-blind constitution ("Equal Justice Under Law" is carved into the Supreme Court building), are considered far right.

Hertzberg states the "filibuster has been around in one form or another since 1806." Imagine an argument about women's suffrage where someone notes "we've had a franchise, in one form or another, since 1789." The "form" of filibustering has changed so much, you're not talking about the same thing anymore. With 41 Senators you can close down the process without having to actually talk. We've rarely had old-fashioned filibusters since the days of Robert Byrd trying to stop civil rights legislation.

Hertzberg notes the filibuster has been a favorite tactic of hard-shelled conservatives, particularly for issues like preserving slavery and perpetuating white supremacy, but "lately, the roles have reversed" Reversed? What Hertzberg doesn't mention is these "conservatives" of the past were Democrats, so how are things different? When Senator Byrd fights for the "right" of Senators to filibuster, he's yet another conservative who wishes nothing would change.

Hertzberg then tries to differentiate between laws and judicial nominees--laws can be repealed or amended while a federal judge serves for life. So we're supposed to think filibusters are better used to stop judges. But, let's face it, a major law (the kind that gets filibustered) effects many millions deeply, while one federal judge out of hundreds (note we're not talking about Supreme Court justices) may have little effect overall. Furthermore, laws tend to live on, while judges eventually quit or die.