I find it hard to imagine that that framers of the Constitution silently wanted to have a process which is designed to thwart the other explicitly created processes. That’s like saying a car maker intended its line of cars to have a chronic stalling problem. At least let’s start with an honest debate and recognize that the filibuster was a political tool created after-the-fact and cut out all this “it’s part of our constitution” nonsense.
But as a longtime constitutional reformer, Hertzberg is himself an anti-filibusterist, recognizing that the Constitution–which doesn’t mention filibusters–already makes it way too difficult for the government to pass laws desired by a majority. Think about it: An identical bill has to pass two different legislatures, with differing terms, and then be approved by a President who may or may not be in the majority party. Isn’t that difficult enough? Why add an extra, non-constitutional rule that makes it even harder to get anything done?
But Kaus and Hertzberg go on to state how appointing judicial nominees is different than passing legislation because its a permanent decision and we don’t want to be left with a radical judge for life. But again, isn’t this just another ex post facto political rationalization? I don’t think you can have it both ways without saying “the Constitution be damned”. And I don’t hear too many Democrats saying that.