The New York Times Changes Position on Filibusters
by Justin Shubow
Posted January 30, 2012, 12:16 PM
In an editorial over the weekend, The New York Times called for a stop to filibusters against nominees for presidential appointments:
The system for reviewing presidential appointments is broken. The Senate has a constitutional duty to provide advice and consent on the naming of judges and high-ranking executive branch officials. But the process has been hijacked by cynical partisanship and cheap tricks.
This is not a new problem, but it has gotten intolerably worse and is now threatening to paralyze government, as Republicans use the filibuster to try to kill off agencies they do not like. The number of unfilled judicial seats is nearing a historic high.
It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.
This is a major change of position for us, and we came to it reluctantly.
To get a sense of just how "major" this "change of position" is, compare this NYT editorial from 2005, during the George W. Bush administration:
The Senate will return from Easter vacation with nuclear options on its mind. Republicans seem determined to change the rules so Democrats will no longer be able to stop judicial nominations with the threat of a filibuster. If they're acting out of frustration, it's understandable. In the past we've been frustrated when legislators tried to stop important bills from passing by resorting to the same tactic. The filibuster, which allows 41 senators to delay action indefinitely, is a rough instrument that should be used with caution. But its existence goes to the center of the peculiar but effective form of government America cherishes.
Similarly, in 2003 the Times' editorial board called for Democrats to maintain the filibuster against Miguel Estrada, whom President Bush had nominated for the United States Court of Appeals for the District of Columbia Circuit:
Republicans are attacking Democratic senators for using a filibuster. The criticism rings hollow, given that some Republicans making it, including the majority leader, Bill Frist, voted to filibuster when President Clinton nominated Richard Paez, a Mexican-American, to an appeals court.
UPDATE: At the Volokh Conspiracy, Jonathan H. Adler defends the spirit of the NYT's current position:
Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one’s political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.
Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used. If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the “Gang of 14″ deal. Their willingness to consider the filibuster’s end will be necessary to secure a truce.