On the filibuster - Democrats suddenly find religion

It has recently become fashionable among Democrats and those sympathetic to their programs to decry the supermajority it takes to pass any legislation in the Senate. The new mantra seems to be that it is time to end the use of the filibuster, which requires a vote of 60 senators to stop debate on a particular question or motion before the chamber. The frustration over the legislative process's slow and prodding progress towards a health care reform bill is the straw that broke the camel's back.

This call does my heart good, as this blog has been calling for the reform of the filibuster since 2007. Representative of recent calls is that of reputable law professor Jack Balkin.

But I have to wonder where these principled objections to the filibuster were when the Democrats were filibustering President Bush's judicial nominees back in 2004 and 2005? Dr. Balkin seems to even praise the use of the filibuster by Democrats to stop the imperial designs of Evil Republicans[TM] in a May 2005 blog post:

Getting rid of the filibuster is a key device for achieving this goal. Although the current fight is over judicial nominations, if the Republicans are successful, there will probably be considerable pressure to eliminate the filibuster in other areas so that the Republicans can govern with a freer hand on important issues like taxes, tort reform, and Social Security. If this remaining tool of opposition can be eliminated, the Republicans can proceed to promote their policy goals with far less resistance.

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In fact, eliminating the filibuster is about consolidating Presidential power-- the power of President Bush as leader of the Republican Party-- as much as it is about Republican power,...

The second goal behind ending the filibuster is to smooth the way for Bush to appoint very conservative judges to the U.S. Supreme Court as well as the lower federal courts. This is a method of constitutional change that Sanford Levinson and I have called "partisan entrenchment," in which a determined President stocks the life-tenured federal courts with ideological allies.

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Put in terms of my colleague Bruce Ackerman's theory of constitutional change, movement Republicans seek a "constitutional moment" that will usher in a new regime of conservative constitutionalism that will shape and dominate constitutional thought for generations to come. Eliminating the judicial filibuster is a key step in making that dream a reality.

POSTSCRIPT:
Rick Pildes has a helpful history of the filibuster at Balkinization as well.