Overruled


Defining Hypocrisy Down
March 21, 2009, 11:41 am
Filed under: Ian | Tags: , ,

mushroom-cloudApparently, Dahlia’s latest piece is worthy of two posts in a row.  In it, she notes that all the conservatives who crowed about how Bush’s nominees were super-qualified, and therefore any Democrat who opposed them must really be a radical, are suddenly requiring Obama’s nominees to clear an impossible bar.  Orin Kerr responds by accusing her of some kind of hypocrisy:

The English language needs a word for when advocates on both sides of an ongoing debate switch rhetorical positions, and yet they insist on decrying the inconsistency of their opponents while overlooking their own inconsistency. You can see it in politics whenever there is a change in power. Advocates from the party that loses power switch to the standard what-you-say-when-you’re-the-opposition arguments, and those from the party that is now in power switch to the standard what-you-say-when-you’re-in-power arguments. You never have to wait very long before one side tries to outfox the other by trotting out what their opponents said back before the power switch: “Aha!” an advocate for one side will say, “But back in 199_, you took the opposite position!” Well, of course: back then, everyone took the opposite position. I don’t know of a word for this particular phenomemon, but I think we need one.

Too bad we never did come up with a word for this, as I could have used it to describe this new essay by Dahlia Lithwick.

I like Orin personally, but his claim here misses the mark.

The Constitution provides that “[e]ach House may determine the rules of its proceedings,” and Senate Rule XXII provides for unlimited debate on any measure, but permits that debate to be cut off by a three-fifths vote of the Senate.  Invoking this broad rule, Senate Democrats filibustered a handful of President Bush’s most radical nominees.

Invoking an article published in the Federalist Society’s official journal, Senate Republicans responded by saying, not only that Democrats shouldn’t filibuster these nominees, but that they actually had the power to declare such filibusters unconstitutional.  In other words, the Republicans didn’t just argue the case for President Bush’s nominees on the merits, they sought to eliminate altogether the minority’s power to filibuster them.

In other words, Democrats in 2005 argued that they could and that they should filibuster the nominees.  Republicans argued both that Democrats shouldn’t and that they couldn’t.

To my knowledge, no Democratic Senator is now claiming that the filibuster itself should be eliminated in the context of judicial nominations—which was the Republican position in 2005.  Nor do I understand Dahlia to be making this claim.  Rather, Dahlia’s article merely points out that the same Republicans who insisted that President Bush’s nominees did not need to be scrutinized are now demanding rigorous scrutiny of President Obama’s nominees.  This is not the same thing as adopting the view which was previously held by Republicans.  In essence, Dahlia is arguing that the GOP shouldn’t filibuster Obama’s nominees, but she is expressing no view on whether they can.

There are very good arguments for why we should think about eliminating the filibuster altogether.  Neither Dahlia nor the Senate Democrats, however, appear to be making them.

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