In an interesting argument over at OpenLeft about the biggest mistake recently made by Democrats, Chris Bowers suggests that fighting Republican efforts to gut the right to filibuster back during the “nuclear option” debate of 2005 had truly fateful consequences:
[N]ot allowing Republicans to destroy the filibuster back in 2005 is the biggest mistake made by not only President Obama, but by the Democratic trifecta as a whole (and, I admit, my biggest mistake too). This would have resulted in a wide swatch of changes, including a larger stimulus, the Employee Free Choice Act, a better health bill (in all likelihood, one with a public option, and completed in December), an actual climate / energy bill, a second stimulus, and more. If Democrats had tacked on other changes to Senate rules that sped up the process, such as doing away with unanimous consent, ending debating time after cloture is achieved on nominations, eliminating the two days between filing for cloture and voting on cloture, and restricting quorum calls, then virtually every judicial and administration vacancy would already be filled, as well.
I agree with the general argument that Democrats who got all nostalgic about Senate traditions in 2005 when Republicans were threatening to eliminate filibusters against judicial nominations were not thinking strategically. In particular, those who cheered the Schoolhouse Rock-inspired “Phil A. Buster” ads run by the progressive Alliance for Justice would now probably cringe at the memory.
But for the record, it’s important to remember what was actually going on in 2005, in the Republican effort to force Senate floor votes on Bush judicial nominations. The GOP argument was not against filibusters tout court, but against judicial filibusters. And their argument was that such filibusters were unconstitutional on grounds that they violated the provisions requiring Senate advice and consent for judicial nominations. Indeed, the “nuclear option” they threatened was simply a ruling by the vice president, as presiding officer of the Senate, that Rule XXII governing the terms for ending debate was unconstitutional with respect to judicial nominations. Ending filibusters altogether was never on the table, barring some see-you-and-raise-you Democratic tactic of offering Bush his judges in exchange for a more radical step towards majority rule in the Senate, which was never seriously contemplated.
Sure, Republicans have had some fun over the last couple of years quoting Democrats who made pro-filibuster comments in 2005, and it’s true that some Democrats didn’t try very hard back then to make the specific case for judicial filibusters (a case that could have been made on grounds that lifetime appointments to the federal bench require greater Senate scrutiny than the routine legislation that Republicans now routinely block, creating a virtual 60-vote requirement for Senate action). But Democrats need not spend too much time regretting the failure to take advantage of an opportunity that never really existed in 2005.