Legal Commentary

Rick argues (in the post to which Paul links) that no "Democratic [sic] who praised, during the Bush administration, the filibuster as a vital protection for minority interests in a democracy has any standing to object to any Republican attempt to use the filibuster in the context of the upcoming nomination battle."

But presumably the core value is to make Senators behave consistently (rather than opportunistically) in matters of law and process. If so, is it just as fair to say no "Republican who [criticized], during the Bush administration, the filibuster as [anti-democratic or violative of the Senate's obligation to give advice and consent or of the President's power to nominate judges or who supported the Nuclear Option] has any standing to support the filibuster in the context of the upcoming nomination battle"? Is this an example of "A Plague on Both Your Houses," because both sides are behaving inconsistently? If hypocrisy is often treated as the biggest sin, is the Democratic position more hypocritical than the Republican position? And, if we are thinking in terms of consistency and escalation, is it significant that the Democrats never filibustered either Roberts or Alito?

This is why many critics of current Republican filibuster practices aim much of their ire at Senate Democrats who, back in 2004-05, were so cowed into believing they faced some permanent minority status that they missed the opportunity to end (what many regard as) a pernicious practice.