The Nucular Option

by Henry on November 5, 2004

Over the last couple of days, I’ve been hearing speculation that the Bush administration was going to use the “nuclear option” to get judicial nominations through the Senate; that is, to junk the rules that allow a large minority of senators to filibuster judicial candidates.

Now, “via Josh Marshall”:http://www.talkingpointsmemo.com/archives/week_2004_10_31.php#003940, we have some evidence that Republicans are thinking in “precisely those terms”:http://www.foxnews.com/story/0,2933,137648,00.html.

bq. “As it stands today [Democrats] can block [a nominee],” said C. Boyden Gray, former legal counsel to President George H.W. Bush. But I also believe that the president and majority leader may well decide to change the rules given the elections … The president has a very strong political support, potential support, for asking for and getting this change.”

As Josh says, the next few years will probably see

bq. an effort to use a narrowly secured majority not only to govern, even govern aggressively, but to make institutional changes that strip away the existing powers and rights of large minorities. These formal and informal checks and balances constitute the governmental soft-tissue that allows our political system to function.

Or, to describe it in terms that genuine conservatives “should find compelling”:http://www.yale.edu/lawweb/avalon/federal/fed10.htm.

bq. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority …

bq. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

bq. By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

As the Federalist Papers suggest, the US federal system was intended to provide a “republican remedy for the diseases most incident to republican government.” A bunch of purported conservatives is embarked on the enterprise of stripping out from that system the balancing mechanisms that protect minorities, and engineering district boundaries so as to ensure themselves a permanent majority even if the electorate should turn against them. It is not a pleasant spectacle.

{ 31 comments }

1

des von bladet 11.05.04 at 3:09 pm

Once! Great! Nation!(TM)

Speaking as a major player in the European Schadenfreude industry, I can assure you that it looks just fine from here.

2

Patrick 11.05.04 at 3:20 pm

Perhaps the saddest part of this is to know that dreams of the eternal dominance for the Republican Party are folly, and that someday (I hope sooner rather than later) the pendulum will begin swinging back…but if by then the balances that have kept our system as fair as we have managed to remain have been swept away and replaced by the tools of dictators, will Progressives then have the strength to resist using these tools? Will we then remember that our core values insist on granting a voice to minorities, and reweave the fabric of Democracy, or will we be seduced into becoming more like this grasping radical movement we oppose, in order to defeat them?

3

Dubious 11.05.04 at 4:05 pm

Aye, there’s the rub. The conflict between being a purer democracy (government of the popular majority of the moment, with minimal constitutional restraints) and a republic (checks and balances, obstacles to majoritarian tyranny, etc.)

It’s a hard choice. I think the Democrats are right to emphasize the latter part. And in the future Republican minorty, they’ll be right to too.

4

Scott Martens 11.05.04 at 4:10 pm

A single party state, with a nominal opposition tolerated by the dominant party that is allowed to advance a handful of candidates in each election and win a few seats in a rubber stamp parliament. Sounds a lot like China to me.

5

Sebastian Holsclaw 11.05.04 at 4:30 pm

Wow you are right, I never realized how much the US was just like China. Practically indistinguishable really.

Back in the real world which leftists might want to vist every now and then, the purpose of filibuster is to force further debate. Filibuster as actually practiced on judicial nominees is to resist debate. Every time the filibuster was used on Bush’s nominated judges, Democrats claimed that they didn’t know enough about the judges to vote. Every time they were offered a chance to ask further questions. Every time they declined. The filibuster is not some Constitutional right to block majority action. Rules on debate have been changed before–in the initial Senate, any single senator could continue debate as long as he was able to stand and speak.

But ultimately, the Republican Senate is now strong enough to break a filibuster. If Democrats refuse to target only the judges they hate the most, Republicans can let one hundred or so nominees pile up and then force the actual all day all night vigil from the Democrats. When the Democrats exhaust their ‘speak twice’ rule, the filibuster is broken and Republicans can vote all–including the most extremist–judges in. If Democrats insist on wholesale obstruction, the tactic can be broken and even the most extreme judges Bush could want can get through. If Democrats only fight on the very most objectionable-to-them judges, Republicans probably won’t do that. We will have to see how it plays out.

6

Trickster Paean 11.05.04 at 4:43 pm

When the Democrats filibustered Bush’s nominated judges, they made it clear that the reason why they were doing so was because they thought they were extreme activist judges. Over the past two years, the Democrats filibustered 10 judges TOTAL, all to higher appeals courts. The last three were filibustered because both Michigan senators objected to the nominees, and Bush nominated them anyway.

If Bush wants to get judges nominated and voted on, he’ll work with the Democrats, and not try to shove his extreme nominees through. As it is, history has shown that his inclination lies elsewhere.

7

Brett Bellmore 11.05.04 at 5:27 pm

The problem is, the election which just concluded demonstrated pretty conclusively that what Democrats think is “extreme”, and what the general public thinks is “extreme”, are in many cases two radically different things.

When 60-70% of the voters approve of something you think is “extreme”, you may just have to consider the possiblity that YOU are “extreme”, instead.

8

Dan Simon 11.05.04 at 5:32 pm

What saddens me most, I think, is that after Bush v. Gore, after the filibusters of the last four years, and even now, when Republicans are threatening to break the filibusters and “pack the court”–in short, after liberals have had the dangers of an activist, politicized judiciary jammed into their faces time and time again–there are still so few willing to consider the possibility that conceding incredibly wide-ranging, detailed, public policymaking powers to an unelected, unaccountable judiciary is a terrible idea.

Instead, they overwhelmingly cling to whatever threads of control they have over the appointments process, in the hope that the dictatorship they inherited from the right in the days of Lochner, and have embraced for so many years since, will still retain some tiny measure of fealty to them.

I can understand giddy conservatives rubbing their hands with glee at the chance to enshrine their policy preferences in an untouchable, unaccountable institution long past their eventual future rejection by the electorate. But if ever there were a time for the left to stand up for democracy, this would seem to be it. Where on earth are they?

9

rea 11.05.04 at 5:38 pm

“60-70% of the voters”

Which election did you watch, Bellmore? Are you claiming that GWB has a 60-70% mandate for his policies as a result of the voting on 11/2? Do you really think, for example, that there is a 60-70% majority in favor of criminalizing abortion?

10

Ken C. 11.05.04 at 5:44 pm

“Back in the real world which leftists might want to vist every now and then…”

This is just too easy, so I’ll pass this time.

“The filibuster is not some Constitutional right…”

We are gradually learning just how many traditions and rules Republicans are willing to destroy in pursuit of power. The long-standing tradition of redistricting only after a census, of barring last-minute arm-twisting during a vote, the attack on the “blue slip” courtesy; now, another tradition that the great conservative traditionalists don’t care to conserve.

11

PG 11.05.04 at 5:50 pm

I think we’re now in NaderWorld, where the most for which we can hope is that the naked, unbridled exercise of as much power as possible by the Republicans will disgust their moderate supporters into voting for gridlock next time. Some people who normally identify as Republican already were sufficiently troubled by one party rule that they didn’t vote for Bush this year.

12

Katherine 11.05.04 at 5:51 pm

Yes, it is sad to see Democrats’ attempt to use the filibuster in an obstructionist manner instead of to encourage honest debate. This has never happened before. Strom Thurmond must be rolling in his grave. We have no choice but to eliminate it.

Sheesh.

Here’s my proposed strategy for the judicial nominations: we don’t make our stand on Roe. We make it on Griswold. Of course in practice it’s much the same–there is a good argument that Roe is wrong but the right to privacy and Griswold are right. But Bush’s worst Supreme Court nominees are not going to see it that way. And we can point out that Bush’s nominee to the FDA’s reproductive health board, and a good part of the Christian right, believe the birth control pill is an abortofacient; and that Bush’s FDA has refused to make the morning after pill available over the counter–something that could prevent a lot of abortions–for the same reason.

That ought to draw some interest from women, young voters, and men who like to have sex but don’t like to change diapers.

13

Dan Simon 11.05.04 at 5:54 pm

What saddens me most, I think, is that after Bush v. Gore, after a long string of “states’ rights” and other conservative policy-imposing decisions, after four years of being reduced to desperate filibustering to try to limit the damage, and even now that the filibustering strategy appears doomed to fail, with implications that will echo for decades to come–in short, even after the dangers of subordinating democracy to an unelected, unaccountable, imperiously arrogant and shamelessly politicized judiciary have been rubbed in their faces time and time again–still, astoundingly few liberals are willing to concede that maybe their faith in the wisdom of a benign judicial dictatorship, given the final say on all public policy matters, might have been misplaced.

Instead, they cling desperately to whatever threads of influence they have left, hoping that the absolute rule-by-junta they inherited from the Lochner conservatives during the Roosevelt era, and embraced with passionate fealty ever since, will return that loyalty in some small measure, for old times’ sake–as dictatorships, it should go without saying, never do.

If ever there were a moment for the left to stand up for democracy, this would seem to be it. Where on earth are they?

14

Katherine 11.05.04 at 6:33 pm

Also ridiculous: the idea that the Democrats are illegitimately obstructing the will of the majority in the U.S. SENATE.

Which overrepresents small states, and red states so much it would be blatantly unconstitutional if it weren’t in the constitution.

Actually, there’s an excellent chance the 45 Democrats represent more constituents than the 55 Republicans. Anyone done the math?

15

cbh 11.05.04 at 6:34 pm

The idea about Griswold is a very good one.

And the debate that many of you are having about the democratic nature of the courts misses the discussion of a republican vs. a democratic government above. The judiciary is a very necessary component in the functioning of a our federal government.

Bush v. Gore aside, the ranting that most lefties and righties do about “activist” judges ruling only according to their political beliefs has little grounding in reality. How come no one ever talks about the Supreme Court’s decision in Dickerson — authored by Justice Rehnquist — beating back Congess’s attempt to overrule Miranda? Or the opinion in City of Boerne — which was joined by Rehnquist, Thomas, and Scalia — telling Congress that they can’t exempt churches and religious organizations from generally applicable laws, such as zoning requirements?

And whatever happened to everyone’s righteous indignation over Brown v. Board of Ed, which was so controversial that troops had to be called out in some states to ensure that schools were integrated?

16

Davis X. Machina 11.05.04 at 6:46 pm

Actually, there’s an excellent chance the 45 Democrats represent more constituents than the 55 Republicans. Anyone done the math?

With four Democrats representing New York and California, and two representing — now — Illinois — I suspect you’re right without even going for the calculator…

17

Davis X. Machina 11.05.04 at 6:48 pm

Actually, there’s an excellent chance the 45 Democrats represent more constituents than the 55 Republicans. Anyone done the math?

With four Democrats representing New York and California, and two representing — now — Illinois — I suspect you’re right without even going for the calculator…

18

Henry 11.05.04 at 6:56 pm

I’ve deleted one comment from ‘Steve Duncan’ that went way beyond the bounds of acceptable discourse on CT, and another from ‘davon’ which was a perfectly reasonable response to the Duncan comment, but which repeated it.

19

Katherine 11.05.04 at 7:11 pm

based on a quick and dirty estimate rounding off to the nearest million from 2000 census data, it’s almost a tie. don’t have time to do the real calculation.

20

Sebastian Holsclaw 11.05.04 at 7:25 pm

Filibuster away. Just don’t pretend that your idea of extreme matches most Americans’ ideas of extreme and don’t pretend that the filibuster has anything other than a long ignoble history. Also don’t pretend that filibuster rules are unchanging, or part of the Constitution. Furthermore let us not pretend that the filibuster has a long history of being applied in decisions about judges. You claim to be the reality-based group, so let us stick to reality.

21

Thomas 11.05.04 at 7:37 pm

I don’t look forward to the nuclear option, but if it is necessary then it is necessary.

The Democratic filibusters in the last Congress were unprecedented. Nothing conservative about them. A radical innovation.

The only reason they weren’t met with an equally unprecedented response was the Republican worry about losing the Senate and losing the White House in this election, followed by openings on the Supreme Court.

That concern is gone. So the Republicans are less worried about setting a precedent depriving the minority of some claim to block the majority.

For those who urge Republicans to think of the consequences: Democrats would be wise to consider that, at some point, they are going to have the presidency and the Senate. If they’d like to enjoy the privileges of majority, they will allow others those privileges as well.

Doesn’t seem all that compelling, does it? Rather, the urge is to do what’s needed today and worry about tomorrow when it gets here.

And today, Republicans have the votes. Look for a ruling from the chair, in January, upheld by a party-line majority vote.

22

Ken C. 11.05.04 at 8:54 pm

“Just don’t pretend that your idea of extreme matches most Americans’ ideas of extreme”

Where “most” means 51%, at most, and more accurately, it means, the 20% of voters whose main concern was “men kissing! yuck!”.

“So the Republicans are less worried about setting a precedent depriving the minority of some claim to block the majority.”

Right. Who needs that “tradition” and “rights” stuff when you’ve got the winning 51%?

23

Observer 11.05.04 at 9:07 pm

An amazingly large number of people who voted for Bush are either pro-choice and/or believe in strong civil liberties. If you read them Scalia’s dissenting opinions they would be horrified.

There is quite a shock in store for them. In 4 years time the 1st, 4th, 5th and 14th amendments will be rendered almost meaningless.

Maybe then those people will choose to vote based on civil liberties. Well, I suppose that depends on whether they still have the right to vote (see Bush v. Gore).

24

lemuel pitkin 11.05.04 at 9:11 pm

Anybody here read “Master of the Senate”?

The filibuster is an awful, undemocratic thing. A few bad judges (which we’re going to get anyway) is a small price to pay for getting rid of it.

And as for the question,

will Progressives then have the strength to resist using these tools?

I certainly hope not!

25

Kimmitt 11.05.04 at 9:14 pm

The Democratic filibusters in the last Congress were unprecedented. Nothing conservative about them. A radical innovation.

No, they weren’t.

26

Kimmitt 11.05.04 at 9:14 pm

The Democratic filibusters in the last Congress were unprecedented. Nothing conservative about them. A radical innovation.

No, they weren’t.

27

Kip Manley 11.05.04 at 9:55 pm

What an interesting new definition of mandate: so popular you can undo the rules you’re not popular enough to work with.

28

James Withrow 11.05.04 at 10:32 pm

I count 30 red states and 20 blue states. What do you think that means for the future of Dems in the Senate? It’s probably in the longterm best interest of the Dems and certainly of city people if the Senate drops its cloture rule. Let the Reps have at it, I say.

29

Gordon 11.05.04 at 10:42 pm

Ms. Greenberger’s testimony (posted above) is well argued, but I don’t think it amounts to an extended tradition of judicial filibusters.

Yes, the Republicans threatened with it a couple of times in the Clinton years, but it doesn’t seem they actually used it — and they could have, having more than forty votes at the time.

The blockage of six nominations in the last term still seems like a one-sided innovation.

30

VJ 11.06.04 at 9:20 am

Please; Some one read this book, OK?

It makes the arument that the current Republican court is Already the MOST activist court in our history, striking down more state and Congressional laws than any court before it. Indeed it has struck down more Congressional legislation in the past 12 years than have almost all courts prior to it!

The Most Activist Supreme Court in History, by Thomas Keck, Univ. of Chicago Press, 2004.

31

nick 11.07.04 at 1:46 am

You claim to be the reality-based group, so let us stick to reality.

Sure thing, Mr self-identified gay Republican. If you don’t feel under siege now, just stick around for a year or so. In short, since Bush is going to have to pay back his self-identifed ‘base’, you’re likely to find that reality bites.

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