Bainbridge a Bit OverBoard

While I may be moving towards becoming a convert of the Coalition of the Chillin, I find Prof. Bainbridge's conservative defense of the filibuster lacking in many respects.

Is the filibuster conservative? As I have argued elsewhere on this blog, Edmund Burke certainly supported what might be termed 'radical' actions when some exercise of power serves to destabilize the very institutions conservatism wants to conserve. And the filibuster of judicial confirmations is *decidedly* an unconservative innovations that threatens 2 of the three pillars of American government: the executive and legislative branches.

1) Set aside, for a moment, the Constitutional question. We are already facing a judicial crisis with a back-log of cases ever mounting and *fewer* and *fewer* seats filled on the federal benches. The judicial branch can't serve *any* function if it is paralyzed by an absence of working judges on the bench. The employment of filibusters (setting an effective 60 vote requirement for judicial nominees) exacerbates this problem by a factor of 10.

2) Secondly, again ignoring the constitutional question of the appropriate sphere of executive authority in the nomination process, this threatens the executive branch in exactly the same way that it threatens the judicial branch. And there it represents an even more pernicious threat to the workings of that branch. Unlike federal appointments to the bench, executive appointees serve for only a few years. And yet the nomination process has taken increasingly *more* and *more* time. It has inspired several reform proposals in order to streamline the process. Consider that the filibusters of the 10 Bush nominees have lasted for several *years* now. Is it such a large step from filibustering judicial nominees to filibustering executive nominees? Of course not. It is much larger a step to move to filibustering nominees at all, and they've already taken that step. Indeed, Democrats are already contemplating filibustering Bolton, an executive branch nominee. Standing athwart history shouting stop, in this sense, involves protecting the staffing of these vital branches of American governments. The rejection of a nomination filibuster is a shout of support for the continued full staffing of all branches of the federal government and hence retaining the balance of power between those branches. An emaciated federal judiciary and executive cannot faithfully serve their functions. Power would necessarily accrue to other areas of government (like, say, the unelected bureaucracy). Indeed, the nominee filibuster represents a significant threat to both of these democratic institutions.

A republic is *dependent* upon elections being decisive. In essence what a vigorous employment of the filibuster of nominees (or 'holds' or 'committee actions' for that matter) does is nulify the results of the previous election. A President is immediately seated once he wins the presidency (in the sense that he takes over as soon as his predecesor's term ends). This is not true for the rest of the executive branch. It empties of political appointees, with the career bureacurats the only continuity from one administration to the next. As it stands today, the president must immediately begin a 2 year battle to win seats in *his* branch of the government. These nominees, after a period of acclimation, may have a year or two to begin implementing presidential directives before the next election. This puts them at a severe disadvantage in regards to the exeuctive agencies and departments they theoretically head. The filibuster threatens to even further extend this timeperiod. It is not inconceivable that a short distance down the road it may be nigh impossible for a president to fill executive positions during his tenure. Whole segments of the government may become immune to regime change. A president is term-limited. He serves for only 4 years a term. He already faces an uphill battle in taking on the bureacurats that populate the branch he wins control of. How can we hold a president accountable for policy when we've thrown so many roadblocks to him appointing his own people to his own branch of government?

3) Prof. Bainbridge's argument conflates conservative opposition to radical change with opposition to change at all. The filibuster is a profoundly conservative tool, which advances each of Kirk's goals. It slows change by allowing a resolute minority to delay -- to stand athwart history shouting stop. Says Prof. Bainbridge. And all well and good so far as that goes. But filibusters aren't employed to 'delay' action...they are employed to kill it. Not to slow change, but rather to prevent change entirely. And it isn't a change in policy related to legislation that we are discussing. At least where change is killed in regards to policy, there is a status quo policy that continues to operate. But with appointments to empty seats, there is no *status quo* to perserve. There is nothing at all. A missing part in the machinery of government. As parts go missing, the other cogs must pick up the slack of the absent parts. Enough parts go missing, and the machine doesn't run. And that is exactly what is threatened by this trend in filibuster employment. It threatens the very institutions of government upon which the stability of our society depend. How are the people to hold a president responsible when he cannot even staff his own branch of government? When he cannot serve his appointment role in the judiciary branch? Conservatives are not uniformly nor myopicly opposed to change. Neither Kirk nor Burke would endorse a policy that destablizes the democratic institutions of society. Which is why I believe both would have no problem with an effort to prevent appointment paralysis...exactly what the filibuster portends. So while I may be 'chillin' on the Compromise, I'm still 'illin' on the Filibuster. Peace out! D.GOOCH