I don't normally use this space to comment on purely political activities, but as a former Senate staffer I am very concerned with where the Senate might be going with the fight to weaken the filibuster. Like it or not, the right of any Senator to unlimited debate (commonly called a filibuster) is what makes the Senate the ultimate protector of the rights of the minority. It should be kept in mind that this right is not absolute. Under Senate rules, debate can be closed off with a supermajority of 60 votes (down from the original rule of two/thirds).
During my time on Senate staff, I was on the Democratic majority and saw how the Republican minority used the filibuster (not just a filibuster but the threat of a filibuster and other filibuster-based techniques) to modify or even kill legislation that did not have a bipartisan majority. I didn't like it. But I came to understand that the filibuster is an important part of our checks and balances system which makes our Constitution so powerful.
The argument in this instance is not with legislation, but with judicial nominations. Senate GOP leaders are quick to point out that the so-called "nuclear option" of changing Senate rules through a ruling by the Vice President sitting as the President of the Senate (which takes only a majority vote to ratify) will not apply to the legislation. We are told that the President should be given deference in his appointments. I think this is backwards. If anything, judicial appointments should be subject to the two-thirds rule, similar to treaties. The founding fathers realized that treaties could not be undone with out severe consequences (normally war) and they therefore set up the two-thirds requirement. Judicial appointments are also difficult to undo. Judges are appointed for life and can only be removed through the difficult process of impeachment. Thus, the Congress should be extra careful with Court appointments.
What bothers me most, however, it the misuse of information and history during the discussion. An example of this is Charles Krauthammer's "Nuclear? No, Restoration," in Friday's Washington Post:
This technique is defended by Democrats as traditional and rooted in history. What a fraud. The only example that comes close is Lyndon Johnson's nomination in 1968 of (sitting) Supreme Court Justice Abe Fortas to be chief justice. But this case is muddied by the fact that (a) Fortas was subject to allegations involving conflicts of interest and financial impropriety, (b) he did not appear to have the votes anyway, and (c) the case involved elevation on the court, not appointment to the court.
Krauthammer goes on to assert:
One of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees.
Since 1789, the Senate has rejected nearly 20 percent of all nominees to the Supreme Court, many without an up-or-down vote.
In 1968 Republican senators used a filibuster to block voting on President Lyndon B. Johnson's nominee for chief justice of the Supreme Court. During the debate, a Republican senator, Robert Griffin, said: "It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote."
Between 1968 and 2001, both parties used filibusters to oppose judicial nominees. In 2000, the last year of Bill Clinton's presidency, Republican senators filibustered two of his nominees to be circuit judges. They also prevented Senate votes on more than 60 of Mr. Clinton's judicial nominees by other means.
So much for the assertion that filibustering to prevent votes on judicial nominees is a new tactic invented by Senate Democrats.
I leave you to be the judge of who to believe. My money is on Senators Mitchell and Griffin.