The Democrats' "Do Over"

Remember when you were a kid, and there was always one snot-nosed, spoiled, bratty little baby who invariably called a "do over" whenever they were losing fair and square?

Mark Levin does, but George Will apparently does not. Mark reminds him:

The Constitution is silent about a lot of things, such as abortion and same-sex marriage. To argue that its silence is not limiting assumes it's not limiting to any branch of the federal government, including the judiciary. In fact, the Constitution says very little about the power of the judiciary, and its silence has been used by judicial activists to set policy throughout our society. Here, the Senate minority's conduct is actually worse than exercising an "unenumerated power." It is affirmatively denying the full Senate the opportunity to exercise an enumerated power — its advice-and-consent function. If the majority party in the Senate does not wish to exercise that power, it's not compelled to do so. But if it does wish to exercise that power, which is the present case, then the majority can change the rule by which the minority is thwarting the majority, i.e., the filibuster rule.

As to the second point — that the Constitution's authorizing the Senate to set its own internal rules empowers the Senate to impose a supermajority requirement on itself — this has always seemed an odd argument to me. What would Will say, I wonder, if the Senate adopted rules that conflict with some explicit provision of the Constitution? If I follow his logic, the Senate's power to set its own rules, whatever the rules, is given as much weight as explicit constitutional provisions. In any event, if the Senate majority believes the minority's imposition of a supermajority violates the Constitution, and then acts to change the rule, in the end that's all that matters.

If 51 votes were good enough for the Democrats to seat the godawful, illiterate fools they chose for judicial appointments, then it should be good enough to place people on the bench who can actually read the bloody law without going off on flights of fancy.