Over at NRO's Bench Memos blog, Jonathan Adler and Mark Levin are debating the filibuster deal. Levin's been banging away at me in several posts (and in the process violated basic blogosphere etiquette by failing to link to those of my posts he's criticizing). In contrast, Adler gets it exactly right:
I don?t think many conservatives maintain that the filibuster is useful as a tool to block judges. Rather, I think many conservatives believe that the filibuster is a useful legislative tool insofar as it allows conservatives to block the growth of government. The connection is that many conservatives rightly feared the proposed rule change for judicial nominations would lead to the complete elimination of the filibuster for all purposes the next time conservatives sought to block a liberal initiative. That is, getting rid of it where it is improper would lead to getting rid of it where it is proper and useful.
Update: I think I hit a sore spot. Levin sent me this email and told me to post it:
Somebody named Professor Bainbridge is a little thin-skinned. I don't post my comments. NRO does. Take your etiquette complaint up with NRO. Having said that, IMHO your filibuster argument was George Will redo. Maybe you should have linked to his original story, just for comparison purposes. You know, blogger etiquette and all. I didn't think it was particularly harsh criticism, but you didn't handle it very well. Good luck to your students.
Umm. And I'm the one who's thin skinned? What a jerk, IMHO. But compare, contrast, and decide for yourself.
Update2: Given all the flak I'm taking from folks like Levin, my thanks to Hugh Hewitt for this observation:
... the Professor of the Vines and John Podhoretz are fine conservatives and they both like the deal.
I'm not sure why Hugh went on to claim that this deal "sell[s] out the Constitution," however. To be sure, a lot of conservatives I respect (e.g., my friend and former colleague Gerry Bradley) likewise seem to think that the Constitution precludes filibustering of judicial nominees.
I'm just a little old corporate lawyer, not a con law expert, but it seems to me that the constitutionality of the filibuster as applied to judicial nominations (or anything else for that matter) is quite complex. It's said that the Constitution's advise and consent provision is counter-majoritarian. But so what? So are things like the committee process, holds, and unanimous consent requirements. I believe that the Constitution permits all of these practices, even though they're counter-majoritarian. The Constitution, in Article I, section 5, seemingly contemplates that the Senate may adopt rules other than those set forth in the Constitution: "Each House may determine the rules of its proceedings." Isn't the filibuster rule just such a procedural rule?
It is said that the Constitution sets out specific instances in which a supermajority vote is required. The advice and consent provision is not among them. But so what? The Constitution doesn't say the list of supermajority vote requirements is exclusive. Just as shareholders of a corporation can adopt bylaws requiring a supermajority vote for matters as to which the corporation statute only requires a majority vote, why doesn't Article I, section 5 allow the Senate to do likewise?
Besides which, the GOP used blue slips and Judiciary Committee rules to bottle up dozens of Clinton judicial nominees in committee. As, of course, the Democrats sometimes did to Bush 41 and Reagan nominees. So even if the Constitution requires an up-or-down vote on every nominee, there is bipartisan history of ignoring that rule. Too many of my conservative friends are ignoring this little fact.
