Who Can Really Say?

Senator Adolph Rick

I haven't blogged about the pissing contest in the Senate over Bush's Circuit Court judicial nominees yet. For the last several months there's been a steady back and forth stream of stories over whether or not the world will come to an abrupt end, depending upon whether a minority in the Senate can block nominees from receiving up and down votes, or whether one or more of the contested nominees is actually confirmed. The badminton birdie of choice has been the fillibuster rule, which more or less allows "debate" to continue on a matter until at least 60 Senators supports an end to debate and a subsequent vote. Of course, there is no actual debate -- it's all deep down technical Senate rules stuff which, believe it or not, pretends that debate is taking place when it isn't. Considering the quality of what most Senators have to so about so many things, I ought to be grateful I suppose.

But whether or not debate actually results, the GOP is considering changing the Senate rules, something it can do with a simple majority, to end the debate that isn't happening at the moment, so that a vote will occur. Perhaps the Democrats should support a rule change that requires Senate voting to follow the same functionality of Senate debating -- that is, since we don't actually have debates while the Senate is debating, perhaps it would be a good idea if the Senate could also vote without actually voting? The proposal to change the rules has resulted in some of the worst pandering over the history of limited debate in the Senate, and that's what I haven't been writing about because most of it has gone well beyond the simply idiotic -- it has approached and surpassed the threshold of being complexly idiotic.

To me, the "to fillibuster or not to fillibuster" fight, and what the world will be like tomorrow if there is or isn't a fillibuster of these or future judicial nominations, is mostly not that important. If there's anything important here, it's the 11 nominees themselves. If Bush is right to nominate them and the Senate GOP right to fight hard enough for them by changing the fillibuster rule, it's because these nominations are good, and fine and should be confirmed. On the other hand, if the nominees are indeed as bad as the Democrats say they are, then in my view there's nothing wrong with fillibustering them at least in the abstract, even if there isn't a long, tried and true history of using the fillibuster like this before. The devil lies in the details, and those details include, for example, whether Priscilla R. Owen is indeed as awful as the Dems say she is. In a perfect world I'd try and find some neutral explanation or rationalization for the Dems opposition to her. We'll see if the world becomes perfect over the weekend.

But in the meantime, the world remains far from perfect, and this is plainly evidenced by the fact that Senator Rick Santorum still represents PA in the US Senate. Today he brought Usenet Newsgroup ethics to the esteemed floor of the Senate, when he said:

And we shouldn't go mucking around in this institution and changing the way we've done things, particularly when it comes to the balance of powers between the three branches of government. And the independence of one of those branches of the judiciary. We must tread very carefully before we go radically changing the way we do things that has served this country well, and we have radically changed the way we do things here. Some are suggesting we're trying to change the law, we're trying to break the rules. Remarkable. Remarkable hubris. I mean, imagine, the rule has been in place for 214 years that this is the way we confirm judges. Broken by the other side two years ago, and the audacity of some members to stand up and say, how dare you break this rule. It's the equivalent of Adolf Hitler in 1942 "I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine." This is no more the rule of the senate than it was the rule of the senate before not to filibuster. It was an understanding and agreement, and it has been abused. .

The quote comes via Eugene Volokh, who in his usual fashion, takes it apart with the precision of an particle physicist examining a quark:

One can analogize anyone to Hitler. Some people wear mustaches. Others are charismatic political leaders. Others invade countries. Others disapprove of homosexuality. (I set aside here the debates about homosexuality among the Nazi elites; I refer here to the Nazi government's actions with regard to homosexuals.) But I take it that if a Democrat said about the invasion of Iraq — or for that matter of Afghanistan — "It's the equivalent of Adolf Hitler in 1939 saying 'I've got military power; I'll invade some countries,'" Santorum would rightly fault the speaker (as he apparently faulted Sen. Byrd for his Nazi analogies on the other side of the debate).

When you link someone to a person who is famous for mass murder, your argument will carry the rhetorical connection to mass murder (or at least to deadly megalomania) even if you purport to be drawing a much more limited analogy. (Compare the Judge Calabresi incident from last year.) I take it this must be the intention, since otherwise why analogize to Hitler, rather than to one of the many other people who have had more than their share of gall? And this, I think, is indeed unfair and in bad taste.

Of course, Santorum has apologized. I just wish he'd go away. Or grow a really cool Hitler mustache, 'cause you know, like, then we could compare him to Hitler too.

[Linked to the Beltway Traffic Jam.]

Posted by Peter at May 20, 2005 06:41 PM