In the wake of Justice John Paul Stevens' most unequivocal pronouncement to date on the subject of his forthcoming retirement, the sharks have begun to circle. For the hardcore political junkies, a Supreme Court opening is like March Madness times a thousand in terms of excitement--will President Obama play it safe by nominating a moderate establishment judge like Merrick Garland, or will a scrappy dark horse in the mold of Diane Wood or Cass Sunstein emerge from the pack? Prognosticators tend to agree that the smart money is on Solicitor General Elena Kagan, although perhaps the president has learned his lesson when it comes to going with the favorite. Whomever he ultimately chooses, we can all hope -- for the sake of the rule of law -- that his Court pick performs somewhat better than his court pick.
Of course, it's not just the armchair point guards whose blogging fingers are all aflutter over the impending retirement of Justice Stevens, who will turn 90 later this month. The minority party wasted no time in announcing their intention to steal the ball and hide it under the bleachers, with Senate Whip Jon Kyl leading the charge. To the surprise of nobody, Senator Kyl made it clear to Fox News' Chris Wallace this week that the filibuster will be very much on the table for President Obama's eventual nominee -- whomever he or she may be. "It will all depend on what kind of a person it is," said Kyl, who notoriously threatened a Republican boycott in an effort to delay now-Justice Sotomayor's confirmation hearing.
The junior senator from Arizona is no stranger to promising filibusters for nominees who do not yet exist. It took him exactly three days after the 2008 presidential election to announce to a meeting of the Federalist Society that he would use the controversial parliamentary procedure to block any Supreme Court appointee who exhibited symptoms of "empathy," a quality he repeatedly derided during the Sotomayor hearings. Given Senator Kyl's distinguished seventeen-month history of advocating for the filibuster as a crucial weapon in the fight to keep the Supreme Court empathy-free, there's absolutely no way -- I mean zero chance whatsoever -- that he could have uttered the following statement on the April 25th, 2005 edition of Meet the Press:
Many of our judges and, for example, Clarence Thomas, people might recall, was approved by either fifty-one or fifty-two votes as I recall. It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate. It has never happened before. So we're not changing the rules in the middle of the game. We're restoring the 214-year tradition of the Senate because in the last two years Democrats have begun to use this filibuster... This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he's been elected by the American people. And it's never been the case until the last two years that a minority could dictate to the majority what they could do.
Say it ain't so, Jon! When Wallace, in an act of what appears to have been journalism, asked Kyl to explain why the once-reviled filibuster had suddenly turned appropriate, the senator responded by saying that "it is wrong, and it shouldn't be done," before going on to blame Democrats for blocking several of President Bush's circuit court nominees and letting the procedural beast out of its cage. Employing the time-honored logic of 'two wrongs make a right,' Senator Kyl rationalized his blanket threat by proclaiming that it wouldn't be fair for only one side to get to partake in all of the horrible, anti-democratic obstructionism. By Kyl's reasoning, the Democrats' successful filibuster of D.C. Circuit hopeful Miguel Estrada back in 2003 means that the Republicans are now clear to filibuster a justice-to-be-named-later -- never mind who that person turns out to be.
I confess a deep ambivalence about the filibuster. Like everyone else on the planet, I consider it to be a despicable subversion of the popular will when I like what's being obstructed and a noble last line of defense against tyranny when I don't. There is one constant in that otherwise irreconcilable calculus, however, and it is the belief that a filibuster ought only to be used in cases of outright necessity (and not, as Senator Kyl would have it, in cases of outright anonymity). The filibuster is an historic tactic, but a relatively rare one; rarer still is the notion that a minority party would threaten to employ it not as a response to a specific objectionable nominee, but as a preemptive strike against anyone who might one day be called to the bench. Kyl's remarks are another sad indication of the state of the congressional minority, of a Republican Party that bizarrely continues to insist on a strategy of perpetually bringing the extreme into the mainstream. When the time comes for the president to name a successor to Justice Stevens, I hope that the loyal opposition considers the implications of its knee-jerk threats against the entire field of potential nominees, and remains loyal to our shared history -- a history that has provided us with a powerful parliamentary device, and in exchange asked us not to fire it with our eyes closed.