Occassional reflections of a moderate (hey at least I think I am)

Thursday, April 21, 2005

Juan Non-Volokh and Filibuster myths

The anonymous conspirator talks about David Brooks’ piece regarding Roe v. Wade, the filibuster and the nuclear option. While I find myself in agreement with many of the conspirators, I would take Juan to task on a couple of points.

First, he(?) appears to accept Brooks’ claim that the filibuster of Presidential nominees is “unprincipled and unprecedented”. While it may be unprincipled (what would the principle be) it is not the case that filibustering Presidential nominees is “unrecendented”. As I have written elsewhere, when you include all nominees, there are few Republican Senators who have always voted for cloture on nominees. (Put another way there are few Republican Senators who have not participated in filibusters of nominees.) It is true that Clinton’s nominees (with the exception of Henry Foster) had an up or down vote. But many of those nominees were only approved after having consideration be subjected to a cloture motion (i.e., they were filibustered). The fact that cloture was invoke only demonstrates that the filibusters in those cases failed. I suppose one could be against “successful filibusters” while approving of “failed filibusters” but it seems like an odd position to me.

The second point I would quibble with Juan on is his(?) statement that

It is also important to note that overturning Roe, by itself, would not be a pro-life victory. All it would accomplish is returning abortion policy to the states, many of which would never severely restrict, let alone prohibit, the practice.

Many have lamented that the Roe decision is problematic because (a) it made a judicial decision out of something that should be a legislative matter and (b) it took a matter that should be left to the states and made it a federal matter. Just as Brooks’ proposal to put the judicial genie back in the bottle is problematic (see here and here ) I believe that saying that pro-life/anti-abortion advocates will allow this to be a state decision is unrealistic. They will seek legislation to prohibit the practice nation wide.


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