I see, by way of Hot Air, this article, wherein Republicans mull freezing up the Senate unless Democrats accede to allowing Bush to appoint at least as many Judicial nominees as Clinton did in his last two years in office. I get a little anxious reading things like this. On one hand, my gut reaction applauds giving the Democrats a taste of their own medicine, in what amounts to a filibuster used against 6 years of filibustering. Still, the Democrats have used some very underhanded procedural tricks to get their way in recent times – from filibusters to recess sessions to fleeing their state. So far, Republicans have stayed largely aloof of such tactics. This is in part due to enjoying a majority status for the better part of the last 7 years, though I don’t see that as a barrier to loophole exploitation. The recess gaveling, after all, is a majority tactic, and if anything, demonstrates that the tactics the Democrats have used are less the desperate tools of an oppressed minority and more a testament to the fact that evil + creativity = power. And the GOP did refrain from the so-called “nuclear option,” if only barely.
Which brings me to the crux of my dilemma. Every time a “procedural loophole” like those mentioned above is used, it drifts farther out of the classification “loophole” and into that of “tradition.” Our government can function, marginally, under these conditions, but not indefinitely. What happens when the default action taken by either party upon Judicial nominee is filibuster? At best, recess appointments will undermine the intent of the Constitution; transforming a theoretical lifetime appointment into a one-year gig, where you don’t even have the luxury of campaigning for your re-election. On that note, what happens to the impartiality of the Judiciary when your continued tenure is directly dependent on the continued goodwill of the appointing party?