The Democrats have recently begun a scare campaign that claims Republicans want to eliminate the filibuster altogether, not just for judicial nominations but also for legislation. This new conspiracy theory states that the GOP will set a precedent on Tuesday that makes it easy for the majority to cast off this particular Senate tradition. Unsurprisingly, John McCain mouthed this canard to the press:

"We're talking about changing the rules of the Senate with 51 votes, which has never happened in the history of the United States Senate," Mr. McCain said, adding that he was worried that eliminating the filibuster for judicial nominees would lead to the elimination of the 214-year-old parliamentary tactic altogether.

"If you have 51 votes changing the rules of the Senate, nominations of the president is next, and then legislation follows that, and we will now become an institution exactly like the House of Representatives," Mr. McCain [said].

McCain must have fallen asleep during Senate History Month, because the GOP won't be setting any precedent on Tuesday -- only following the four set by Robert Byrd and the Democrats. Byrd changed the filibuster rules four times during his tenure as Majority Leader, abetted in at least one instance by former VP Walter Mondale, who now writes silly op-eds about the danger of such maneuvers to the Republic. Instead of listening to his Republican colleagues and paying attention to the facts, however, McCain continues in his ongoing quest to pander to the anti-Republican sentiment in the press.

No one expects the GOP to eliminate the filibuster for legislation. Legislation originates within the Senate and is therefore an internal process, and the Senate is well within its power to regulate debate on its own terms for that purpose. However, the confirmation of executive appointments and treaties involve the power and responsibilities of the executive branch, and the Senate does not set the rules for those purposes. Those rules are governed by the Constitution, which calls for supermajorities only on specific items -- none of which are judicial appointments. This attempt by Democrats to apply an internal control to an external, interbranch function and Constitutional responsibility amounts to a usurpation of power by the Legislature, and worse, by a minority within the Legislature.

If the Democrats want judicial nominations to require a supermajority, they need to propose a Constitutional amendment to change the rules. That will require a supermajority within Congress and three-quarters of the states to ratify it, an impossible task, given that 214 years of our existence has never shown a need for such a rule. Further, the Democrats will never propose it, because it would expose them as the radicals of this issue, as opposed to their claims of GOP power-grabbing. Instead, they propose to pervert the Constitution and interbranch governance by smokescreens and intimidation -- and for the past two years, the GOP allowed them to get away with it.

That's why the GOP cannot compromise on the use of the filibuster. Any deal which includes its future use for judicial confirmations only endorses it as a legitimate tactic and seriously twists the Constitutional balance of powers. That should never be the basis of any compromise.

NOTE: I split this out from an earlier post, as it made better editorial sense to have this argument stand alone.

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