Be careful what you wish for…

Another one from Reason – Gene Healy with a sharp piece on how ending the judicial filibuster could backfire on Republicans. Ending the judicial filibuster, Mr. Healy argues, could provide a precedent for ending the legislative filibuster as well. And that would be problematic for anyone who favors limited government:

But the second possible endgame to the filibuster battle should worry you, unless you think too little legislation is a major problem in American life. There’s a chance that the G.O.P.’s nuclear gambit could eventually lead to the death of the filibuster as a whole.

That would be disastrous. The theory underlying the Constitution is that, in political life as opposed to economic, transaction costs are good. As James Madison explained in Federalist 62, the Senate itself was designed in part to curb “the facility and excess of lawmaking.” The filibuster isn’t part of the Constitution, but it helps augment some of the Constitution’s checks on promiscuous legislating. Since many of the constitutional checks on legislative overreach have eroded over the years, the filibuster is even more important today.

[…]

What ought to happen instead is a return to real filibusters. The Jimmy Stewart–style filibuster became a rarity in the 1970s when then–majority leader Mike Mansfield ushered in a two-track system whereby the Senate could move on to other business when a credible threat to filibuster was presented. In the modern era, real filibusters only occur when the majority sees political advantage in the spectacle. In 1988, for example, in the midst of a filibuster fight over campaign-finance legislation, then–majority leader Robert Byrd ordered the arrest of Republican senators boycotting a quorum vote. Three Capitol policemen forced their way into Sen. Bob Packwood’s office, grabbed Packwood by his ankles and both arms, and carried him feet first onto the Senate floor. “The knock on the door and the forced entry smack of Nazi Germany, smack of communist Russia,” wailed Senator Arlen Specter. “I rather enjoyed it,” said Packwood.

Washington needs more of this sort of thing. If the Democrats really think Janice Rogers Brown is a threat to the Republic, they ought to be willing to get hoarse-voiced and incoherent keeping her off the D.C. Circuit. And if Republicans are committed to these judges, they ought to be willing to sleep on cots in cloakrooms. For their salaries, perks, and power, the least they can do is give us a show.