I'm open to being persuaded - filibusters and judicial nominees

Sometimes I just don't know what to think.

On one hand, the idea of basic fairness leads me to support the idea of up/down votes on judicial nominees. The filibuster is only useful if the opposition knows the nominee would garner 51 to 59 votes which is enough to pass but not enough to end a filibuster.

So is this fair?

Hugh Hewitt has been on this soap box on his radio show and on
his blog. Excerpt:

All weekend long every GOP senator should tell every newsman and constituent: "There was exactly one refusal to close debate on a judicial nominee in the entire 20th century, and that was a favor to a sitting Supreme Court justice about to be embarrassed by defeat who withdrew his nomination immediately afterwards and resigned soon after because of ethics problems.

Since January, 2003, there have been 20 different refusals to close debate on judicial nominees. This disfigurement of Senate tradition, disguised as the appropriate application of a rule intended for legislative debates, must and will end."

That is it. That is all there is to the argument on the filibuster.  And since the Democratic Senators' handlers are pledged to make those senators filibuster Supreme Court nominees, there is a pressing need to return and codify the real tradition asap.

However, some other bloggers I check out have different views.

Bainbridge is a law professor with libertarian-conservative views has this to say:

It's time to try something a bit more drastic. Maybe to try a lot of different things. Some possibilities: Term limits on judges. Congressional legislation per section 2 of Article III of the Constitution to remove certain issues from the jurisidiction of the courts. (I'm not at all convinced that undoing the fillibuster as to judicial nominations is the right call; after all, there likely will again come a day when a liberal president enjoys a liberal majority in the Senate.)

Then there is the left-center Kaus over at Slate who says:

Friday, April 22, 2005
2:02 A.M.

And there are several plausible distinctions between judicial nominations and legislation. The problem is that most of these distinctions cut in the opposite direction from the one Frist is going in:

1) Judges are for life, as Rick Hertzberg notes, while mistaken legislation can be repealed by subsequent Congresses.

2) Judges (however long they serve) have acquired unaccountable, super-legislative powers the Framers almost certainly didn't anticipate. When mere legislators get mad at judges and try to hold them accountable, eminent lawyers from their own party swat them down. When Presidents try to hold them accountable, they're accused of court-packing. Basically, they are not accountable the way other players in the system are--certainly not accountable in any way commensurate with their power.

Both these factors suggest that we must be really, really careful in selecting judges in the first place, which is why both factors militate in favor of requiring compromise--which is what filibusters do.
...................
Plus, there's a much more powerful reason--a third reason--for treating judicial votes differently that I completely overlooked, namely that the Senate's advise-and-consent votes are votes that don't involve the House in any way. That means one of the basic majority-obstructing mechanisms the Constitution provides for legislation--the need to get two quite different legislatures to agree--simply isn't there when it comes to voting on judges.

Finally, center-right, David Brooks has these remarks:

Over the past four years Democrats have resorted to the filibuster again and again to prevent votes on judicial nominees they oppose. Up until now, minorities have generally not used the filibuster to defeat nominees that have majority support. They have allowed nominees to have an up or down vote. But this tradition has been washed away.

In response, Republicans now threaten to change the Senate rules and end the filibuster on judicial nominees. That they have a right to do this is certain. That doing this would destroy the culture of the Senate and damage the cause of limited government is also certain.

The Senate operates by precedent, trust and unanimous consent. Changing the rules by raw majority power would rip the fabric of Senate life. Once the filibuster was barred from judicial nomination fights, it would be barred entirely. Every time the majority felt passionately about an issue, it would rewrite the rules to make its legislation easier to pass. Before long, the Senate would be just like the House. The culture of deliberation would be voided. Minority rights would be unprotected.

Those who believe in smaller government would suffer most. Minority rights have been used frequently to stop expansions of federal power, but if those minority rights were weakened, the federal role would grow and grow - especially when Democrats regained the majority.

Majority parties have often contemplated changing the filibuster rules, but they have always turned back because the costs are so high.

From all these arguments, I'm leaning against changing the Senate rules regarding the usage of filibusters on judicial nominees. I say, bring up the nominees and make the Democrats use the filibuster. In poker terms, call them on it. The public will then judge in the free market of ideas as the two sides debate. The Democrats will try to give reasons why they think those judges are no good. The Republicans will have to give reasons why they think they are good and the public will respond by calling their senators telling them what they think. If the GOP is seen as pushing bad judges the voters will punish them. If the Democrats are seen as obstructionist the voters will punish them.

In the long run, Bainbridge's idea of term limit on judges might be the change that needs to take place.