Conservatism and the compromise

Professor Bainbridge is mildly rebuking the conservative blogosphere for reacting angrily to last night's fillibuster compromise in the Senate, saying, "I find these reactions not only short-sighted but also surprisingly unconservative." I disagree. I think Bainbridge is being unconservative and short sighted here.

Bainbridge starts out with a little Russel Kirk to try to show us why we aren't being conservative. I'm going to use those same grafs to show why we are.

Conservatives are champions of custom, convention, and continuity because they prefer the devil they know to the devil they don’t know. ... Burke’s reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to he gradual and discriminatory, never unfixing old interests at once.

Here's the devil I know in this fillibuster deal-the Democratic party. And here's what I do and do not know. I do not know that, when they next take power again, that the Democrats won't scuttle judicial fillibusters themselves. After all, legislating through the judicial is a fine art of the Democrats. Here's what I do know. The first time Republicans attempt a judicial fillibuster, they'll scream that it is mean spirited payback on the part of Republicans, and rule change will be back on the table. Given the Democratic affinity for the judicial branch, logic tells me that rule will get changed. Therefore, killing the filibuster now is a prudent change.

... In politics we do well to abide by precedent and precept and even prejudice, for the great mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any man’s petty private rationality.

Precedent. Precedent is a strong, strong thing. If you want precedent, just look at how old Bob Byrd has flip flopped on the filibuster over his career. Does anyone actually believe the Democrats won't flip flop on judicial fillibusters when they regain power? Precedence tells me the weapon the Democrats yield today will not be available to Republicans tomorrow. So if you can take away that weapon yourself, you should do so. Bainbridge is apparently of the opinion that those of us who are angry are just displaying "petty private rationality."

Here's the money quote.

... Any public measure ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity. Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away. As John Randolph of Roanoke put it, Providence moves slowly, but the devil always hurries.

It is Bainbridge and the like who are being short sighted here. Can they actually tell me that they think the Democrats won't pull the rug out from under Republicans on judicial fillibusters? That is the long term consequence of this compromise. McCain, Graham, et al, have just made sure that the Democrats can obstruct Bush's first nomination to the Supreme Court until they get someone who meets their litmus tests. Once they regain power, they will then remove Republicans' ability to block their nominations in return by killing the judicial fillibuster. I'd put money on it. Being a conservative does not mean sitting back and never changing anything in political realm, especially when the other guys are changing the rules to fit their present needs. The conservative thing in this case is to go back to the time when judicial nominations were debated and voted on, not fillibustered and held to a super majority.

Bainbridge the attempts to play the slippery slope card. If Bainbridge thinks this is a slippery slope issue, then I hope he realizes that we are already standing on avalanche ready snow. The Democrats will change this rule when it suits them. They've learned that they ultimately control the game when they control the judiciary. They are not going to allow Republicans to keep them from doing so now that they've taken the radical step of using the fillibuster against Republican judicial nominees.

If anybody is out their standing athwart history and yelling stop right now, it is those of us who are trying to prevent judicial appoints becoming subject to a super majority vote. Bainbridge can tell me otherwise until he's blue in the face. He can even call me a "numbnuts". He isn't going to change my mind on that, though.