Outside Counsel

I was unsure about how I felt about the deal that spared the filibuster, but Kausfiles just put it into focus for me. On the one hand, the filibuster has traditionally been the tool of reactionary forces in our government; on the other hand, federal judges are appointed for life, and some system to prevent the sorts of appointments that Senator Schumer and others have been blocking has to be in place to insure the integrity of the system. Republicans used to favor the "hold" system, but they are utterly without scruple, and once they sensed that their foot was on the throat of the Democrats obviously they would take complete advantage. When I heard about the compromise my first reaction was that it came about because the Group of 14 valued the Senate as an institution more than they value the principles that might mitigate for or against a particular nominee or measure. I have strong feelings about Senatorial courtesy: because Senators are disinclined to speak ill of their collegues we ended up with John Ashcroft as Attorney General. If it is a default the result is intellectual laziness of the most dispicable sort. On the other hand, I believe strongly that process and institutions are important, and that without them we would find ourselves in far worse straits than we are at present. I think about the great scene in "A Man For All Seasons", when Thomas More remonstrates William Roper:

MORE: What would you do? Cut a great road through the law to get after the Devil?

ROPER: I'd cut down every law in England to do that!

MORE: And when the last law was down, and the Devil turned on you -- where would you hide Roper, the laws all being flat?

And then I read Mickey Kaus' piece, that I linked to above, and it all came into focus for me: "Why, after all, are so many people in Washington attached to the Senate's "right to unlimited debate"? Is it because the filibuster--which effectively requires a supermajority to pass anything through the Senate-- guarantees "freedom of speech, freedom of debate and freedom to dissent in the United States Senate." (Sen. Byrd's modest version.) Or is it because the filibuster, and the exaggerated power it gives to both minorities and individuals, is the basis for much of the Senate's--indeed Washington's--corrupt cash economy? Without the filibuster, after all, senators in the minority party wouldn't be nearly as big a deal. They couldn't block legislation--so lobbyists wouldn't need to bribe them with campaign contributions. And honest, self-protective corporations wouldn't have to pay so many of these lobbyists to bribe them with campaign contributions."

In fact, there exists in our land a legislative body that operates on those lines: it is called the New York State Legislature, and it is a profoundly undemocratic institution. The influence of an individual member of the New York State Legislature is exactly proportionate to the willingness of the member to hew to the line drawn by the leadership of each house. If you play ball, there are member items, and patronage tidbits for you. And if you don't-- well, we don't know, because nobody has ever done that. They may not be even as bright as Senate Democrats, the members of the New York State Legislature, but they are bright enough to know what side the bread is buttered on, so they all play ball.

The Group of 14 rescued the US Senate from that fate, for the time being. I'm no fan of John McCain, but he brokered the right deal this time. What do you know, the patron saint of lawyers had the right argument this time too.