Custom and Retaliation: The Filibuster and Precedent vs. Foreign Affairs
THE FILIBUSTER is an example of the kind of lovable tradition that is so much a part of the English and American political systems, like the New Hampshire primary being first and the Democratic and Republican parties alternating whose convention comes first. This kind of tradition depends on fair play and reciprocity, though. The Democrats have innovated by using the filibuster to establish a veto on routine appellate court nominations. As many have noted, including Professor Eastman in National Review, the filibuster is not only not in the Constitution; it pretty clearly can be overturned by a majority of senators at any time. Just as the Senate of 2000 cannot pass a law that says that future Senates cannot ever pass a tax increase, so no Senate can pass a law saying that future Senates cannot end debate except by a 60% vote.
The filibuster, like the New Hampshire primary, has survived because it has been tolerated–as part of “playing fair”. Now the Democrats have stopped playing fair. The obvious response is for the Republicans to retaliate by adhering to the letter of the Constitution, especially since that will also preserve its spirit, and to go further by ending the filibuster for everything, not just for nominations.
The Democrats would not have done this if they had foreseen that response. Rather, they expect the Republicans to either (a) acquiesce, or (b) return to the status quo, by passing a rule that nominations are not subject to filibuster. In case (a), the Democrats have succeeded marvelously. In case (b), they are no worse off than before. Thus, this was probably a smart, if immoral, move.
It is curious that the Democrats pursue this strategy in domestic politics, while eschewing it for foreign policy; and the Republicans do the opposite. Saddam Hussein tossed out the weapons inspectors in the hope that either (a) Clinton would acquiesce, or (b) Clinton would threaten war, and Saddam could back down and be no worse off than before. Clinton’s response was to acquiesce.