"What was once thought can never be unthought..."

Glenn Reynolds links to a piece on Taegan Goddard's Political Wire with a question for former US Today columnist Walter Shapiro. "Which party stands to lose the most from a filibuster showdown?" Shapiro's answer has some good points but also, I believe, fundamentally ignores (as many have done) some political reality.

If Bill Frist indeed knows how to count votes and the nuclear option is successfully detonated, the Democrats are likely to be the short-term losers during a period that extends through the Senate vote on Rehnquist's successor. For there is just no way for the Democrats to look high-minded while they are employing obstructionist tactics to get even for loss of the filibuster.

Ok, that's all good so far. Nothing to disagree with there.

But, ultimately, it is hard not to see this as a Pyrrhic victory for Senate Republicans. Not only will the next Democratic president be giggling at GOP folly when she or he starts nominating federal judges in 2009 or 2013,

This is where reality gets ignored. And everyone's doing it. Tod Lindberg made the point in the Washington Times a couple of weeks ago, and he's the only one (other than me) that I've seen make it.

The point is this - filibusters of judicial candidates are doomed. It's inevitable. The Republicans can refrain from changing the rules today, or tomorrow, or next week, but in the long term, the rules are going to be changed and judicial filibusters are going to be eliminated. Either the Republicans will change the rules and eliminate them now, or the Democrats will the next time that there's a Democratic President and a Democratic Senate. How can I be so sure?

Let's look down the road and try to imagine a world in which President Hillary Clinton has majority Democratic support, and a few Republicans, in the Senate for a couple of liberal pro-Roe judges to the DC Court of Appeals, and 42 Republicans are preventing a vote. Is it even remotely conceivable that a) the Democratic majority would not change the rules and b) the mainstream media wouldn't support them whole-heartedly?

Please. Of course not.

but also if the filibuster is eliminated for judges, it will be philosophically hard to maintain it for legislation. So unless the Democrats completely abandon their belief in activist government in a new bout of triangulation, the Republicans will someday loudly lament losing a major procedural weapon the next time a president tries to provide health care for the uninsured.

Again, I think that this is assuming facts not in evidence. The entire position of people arguing against the Republican rules change seems to be this - the filibuster rule is absolutely inviolate, carved in stone, and will provide endless protection for the minority unless the Republicans change it right this minute. I just don't see it.

This filibustering of judges is not some long tradition in the hidebound senate. Despite the media coverage, it simply is not a case of radical Republicans attempting to change long-standing rules. The de facto rule has always been that presidential nominees, absent extraordinary circumstances, are entitled to an up-or-down vote. Both sides have played games with this, of course, with blue slips and committee games, but never before have nominees been voted out of committee and failed to get a vote on the Senate floor. (Yes, yes, everyone knows about Abe Fortas, a case which is not even remotely similar to what's going on now.)

The "nuclear" option isn't changing the rules so that nominees with majority support actually get a vote - the "nuclear" option was invoking the filibuster in the first place. The Democrats have changed the world, and the Republicans need to deal with the world as it as, not as they'd like it to be. It's foolish to pretend that the filibuster will always be there to protect the Republicans as long as they don't change it now.

There was a piece in the Washington Post last week by Charles McC. Mathias, a former Republican Senator from Maryland. (The phrase "Republican Senator from Maryland" tells you that he's been out for a while.) In it, he talked about being in the Senate during legislative battles in the mid-70s. And he talked about how the rule on cloture got changed from requiring 67 votes to requiring 60.

Sen. James Pearson of Kansas, a civil rights advocate, blew the whistle and asked for a timeout. He had been giving some thought to the fact that there was a positive side to deliberative debate, even at the cost of some delay. He proposed a compromise that set the necessary votes for cloture at 60 instead of 67. Pearson's wisdom prevailed, and the rule was changed in 1975 to allow cloture with only 60 senators agreeing.

I laughed out loud when I read that. We all spin, every one of us. If there's a chance to cast ourselves in a good light, as acting on principal instead of ambition, as demonstrating "wisdom" and not naked politics, we do it. Politicians are better at it than most. Do you suppose that the rule changed from 67 to 60 because maybe, just maybe, they could get somewhere between 60 and 66 votes for cloture?

The point is that the rule has changed, and will change again. An anti-majoritarian rule, not a law, not a constitutional requirement, just a rule adopted by a previous majority, is doomed in a Majoritarian body, and that's what the United States Senate is. It survived as long as the usage was not excessively onerous. It has become so, and so it will be changed. Period. "Maybe not today, maybe not tomorrow, but soon, and for the rest of your life..." If the Republicans think that acquiescing to the media and Democrats in this will buy them cover or support if they ever act the way that the Democrats are acting now, they're fools. And they're hastening the day when they'll actually be in the minority again.

Update:

The Baseball Crank gets it too...

I don't buy this, because it assumes that if Republicans don't change the rule, Democrats won't either. Yeah, and I have a bridge to sell you in Brooklyn. Banking on future Democratic good faith is foolhardy in the extreme. Democrats aren't even pretending to promise that they won't support the same thing later; consider their past track record on changing the filibuster rule to suit their purposes.

(The title of this post comes from the play The Physicists, by Friedrich Durrenmatt.)