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Monday, May 23, 2005

Blessed Compromise!

It appears the Senate, driven by a passel of moderates, has reached a compromise that will obviate, at least for now, any rule change on the filibuster.  The details are here.

Those of us who believe the rule change was bad for the Senate, at least under the procedure contemplated by the leadership, and that the constitutional arguments raised by the leadership and its proxies were flawed, should be very glad indeed.  I won't indulge in partisan analysis, both because I am simply glad for the result and because I think it is too early to figure out how it will be viewed.  The Democrats can depict this as the leadership blinking, but the leadership is equally able to say that it won immediate votes for three nominees only by applying this kind of pressure.  (In reality, as I suggested in my last post, it is not clear how much pressure either side ever really applied.  At little cost, both parties can now send out more annoying fund-raising letters.)  Really, this is not a victory for either the Republican or the Democratic leadership: it is a fragile victory for Senate moderates and/or "institutionalists."  May there be more of them from both parties in years to come. 

For those who genuinely thought the judicial filibuster unconstitutional, this compromise ought not resolve anything.  I have made clear I think they are wrong.  But regardless, I think they and I ought to be able to agree that, merely because the Senate has agreed on a practice, that does not make it constitutional.  If the judicial filibuster was unconstitutional yesterday, it will still be unconstitutional tomorrow.  So they should reject this compromise.  If they do not, it will certainly call into question the sincerity of their constitutional arguments.  As I have said, I think the filibuster, whether or not it is wise, was constitutional yesterday and will be tomorrow.  I will celebrate tonight by reading galleys of an article and grading exams.

Posted by Paul Horwitz on May 23, 2005 at 10:53 PM in Law and Politics | Permalink

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» Peace In Our Time, Part II from The Debate Link
Keeping up with the liberal reaction to the filibuster deal, it perhaps isn't quite as rosy as I suspected. Earl Warren of Boalt Talk calls it "defeat from the jaws of victory." PrawfsBlawg is happy enough to see moderates win out, but certainly does... [Read More]

Tracked on May 24, 2005 7:03:39 PM

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