Thursday, May 05, 2005

Libertarian Vs. Libertarian On Judges 

Looks like there is a split at The Cato Institute over what should be done regarding the Democratic filibuster on federal judges. In Corner 1 we have Executive Vice President David Boaz:

The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it. Everything about the Constitution -- enumerated powers, separation of powers, two bodies of Congress elected in different ways, the electoral college, the Bill of Rights -- is designed to protect liberty by restraining majorities.
In Corner 2 is Vice-President of Legal Affairs Roger Pilon:

But doesn't the filibuster protect minorities against overbearing majorities? Even some Republicans today raise that concern, mindful that one day they'll be back in the minority. That's an attractive objection against the Frist plan - until you think about it. If the filibuster were justified for that reason, then why set the vote to overcome it at 3 /5? Why not 2 /3, as it once was, or 3 /4, or even 9 /10? The reason, of course, is that government would be brought increasingly to a standstill - which might not be a bad thing, except that there are some government services we all need.

In fact, the problem with the old Articles of Confederation was that unanimity was required among the states on many things and so stalemate was the rule. We have a taste of that today in the judicial context.

Thanks to the supermajority requirement imposed by Democratic filibusters, the Sixth Circuit Court of Appeals has been half empty for the better part of Mr. Bush's first term. That means litigation, affecting millions of people, is backing up.

And so we come to the nub of the matter. The filibuster of judicial nominees upsets the balance the framers struck. The Constitution is run through with checks and balances, designed to limit power on one hand, but allow government to go forward on the other. The filibuster intrudes on that design by adding an extra check. But it's not without costs. No doubt today's Democrats think they know better how to strike the right balance than the framers did. Republicans are saying the framers got it right. I'd go with the framers. Let's give these nominees the up-or-down vote they deserve, as plainly contemplated by the Constitution.
By the amount of space on my blog you can tell which position I support. Let's end the filibuster.

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