I haven’t said anything about the battle over the filibuster rule for reasons similar to those expressed by Glenn “Too Tall” Reynolds (see Linking to the Great for an explanation of the “Too Tall” nickname). Glenn says he’d be more involved in the issue if he thought Bush would be nominating “small-government libertarian types to the bench.” To that, I’d add that my default position is in favor of anything that throws grit into the machinery of government and the Senate rules requiring a supermajority to limit debate appeared to serve that purpose. Nonetheless, viewed pragmatically, once the Senate GOP leadership decided to employ the so-called “nuclear option” to eliminate judicial filibusters, they had to follow through. Never make a threat you haven’t the will to execute.
The original choice of the term “nuclear option” was ill conceived. The Democrats were only too happy to adopt the term and use the imagery it conjures up to say that Republicans were “nuking” the Constitution. Later efforts by the GOP to describe eliminating the judicial filibuster as the “constitutional option” (probably inspired by The Constitutional Option to Change Senate Rules and Procedures: a Majoritarian Means to Overcome the Filibuster in the Harvard Journal of Law and Public Policy) were unsuccessful. Never give the power to frame a debate or define its terms to your adversary.
The Democrats wanted to eliminate the filibuster in 1995 before it became a useful tool for them. Now that the GOP has shown how easy it would be to change the Senate rules, the filibuster has become a dead man walking that can be executed anytime a simple majority of Senators has the political will to do it. By not following through the GOP has invited the Democrats to eliminate the filibuster when it will favor them.