The fateful "nuclear option"
What a week it's been in Washington! After weeks of rumors and speculation, it does appear that Senator Frist -- a likely presidential candidate for 2008 -- is determined to force the issue of changing Senate rules on use of filibusters once and for all. On Sunday he appeared on a religious broadcast and suggested that opposition to the conservative judges nominated by President Bush indicated hostility to people of faith. (See Monday's Washington Post.) The Democrat leaders in the Senate, Harry Reid (NV and Richard Durbin (IL), as well as Joe Biden, suggested that a compromise is possible in which some but not all of the conservative judges in question would be confirmed. (Washington Post.) On Tuesday, Frist turned them down. He has put his reputation on the line, and has left himself no room to back down. Ultimately it will be decided by a few GOP moderates in the Senate, such as John Warner. In the Washington Times last week, he was quoted as saying "the right of unlimited debate has been a hallmark of the Senate since its inception."
As a conservative who strives to see issues from a detached perspective and puts a high priority on maintaining a degree of civility in our nation's political life, I see this choice with grave trepidation. As a scholar in political science I have a strong appreciation for the unique role and customs of the United States Senate, "the greatest deliberative body in the world." Yet contrary to what many Democrats are charging, ironically, the proposed rule change would not be a "threat to democracy," but would actually be a move toward a majoritarian form of democracy in which the popular will is translated more directly into public policy. Whether that is good or bad depends on your view of whether serious reforms our needed in our political system, and what the public's role in that reform should be. Traditionally, the Senate has served as a buffer against sudden fluctuations in public opinion, striving for broad consensus wherever possible. So if we are to accept that this proposed rule change to limit filibusters is necessary, we must be very clear on the reasons pro and con.
"Save the filibuster!"
A good starting point for laying out the aspects of this issue is the television ad campaign sponsored by People for the American Way, the left-liberal group co-founded by Norman Lear. It begins with a scene with Jimmy Stewart from the movie Mr. Smith Goes to Washington, and ends with a plea from a Los Angeles firefighter, Ted Nonini, who identifies himself as a "common-sense Republican." The ad and the associated Save the filibuster Web site are obviously reaching out to folks like me. Here is a quick assessment and rebuttal of their talking points:
- The notion they advance that the Republican Party aspires to "absolute power" is patently absurd, something only a paranoid person would believe.
- Dire warnings based on the fact that Federal judges get lifetime appointments suggest that the political stakes in their selection may be too high. So why not limit them to a ten-year term?
- Republicans are not seeking to do away with the filibuster, but merely want to limit its use; minority voices will still be heard.
- This issue is not about "checks and balances," in which parts of government prevent each other from getting out of hand, it is about the Senate's own (internal) procedural rules. The Constitution allows each chamber to set its own rules, and clearly specifies the circumstances in which a two-thirds supermajority is required. Filibustering judicial appointments is a matter of custom, not law. Unfortunately, it has gotten out of hand since the Democrats became the minority party.
The ironic subtext to this campaign is that these Democrats acknowledge, albeit implicitly, that they themselves might get carried away with policy mischief if they returned to power and the Republicans weren't around to keep them honest. That, of course, was the normal state of affairs from roughly 1964 until 1980: virtual one-party rule. The Republicans are not even remotely close to attaining the degree of power the Democrats wielded back then. Nevertheless, the Republicans do need to remember a fundamental point: What goes around comes around.
Some Democrats are outraged that Sen. Frist used his appearance on a religious broadcast for political purposes, and I can understand how they feel. When Bill Clinton was president, he often made highly charged political speeches from the pulpits of friendly churches, which seemed highly inappropriate to me. In my mind, the less that places of worship are used for political purposes, the better. So I would agree that Frist went too far in pandering to a constituent group, wrongly equating obstructionism by Democrats with hostility to faith.
Almost lost in the shuffle is the original question of whether the seven judges nominated by President Bush but thwarted by the Senate Democrats are well suited for the Federal Appeals bench. So, what about the nominees' qualifications? I don't pretend to know enough to make a firm assessment, but both Priscilla Owen and Janice Rogers Brown do at least have solid careers and have issued controversial opinions. The following comment about Janice Rogers Brown from the Save Our Courts Web site speaks volumens: "In addition, Brown has often been the lone justice to dissent on the California Supreme Court, illustrating that her judicial philosophy is outside the mainstream." To them, dissent from what it politically correct is an unforgiveable sin. To an impartial observer, such dissent plays a vital role in weighing the scales of justice. Remember Supreme Court Justice Oliver Wendell Holmes, the "Great Dissenter"?
According to a Washington Post poll on Monday, two thirds of the American people are against the rule change. It sounds suspiciously like one of those sleazy "push polls" used during campaigns. What's more, how many Americans have the slightest idea about how Congress operates? Most have a hard time naming their own House representative and senators, much less being familiar with the issues being debated. So while such polls have little bearing on how Congress runs itself, the very fact that the arcanery of congressional procedures are making headline news may have a very positive effect: Average folks might actually start paying attention to what goes on in the Capitol building from now on. The fundamental point remains, however: Democracy does not mean policy is driven by polls, it means that policy is driven by the representatives elected by the people. If they don't like the results, the vote the bums out in the next election.
Glenn Reynolds has been reticent on this question, but has expressed occasional qualms about the religious right, which I share. See (InstaPundit). Andrew Sullivan has become utterly disgusted with the Republicans, seeing them as a tool of "theocrats" like James Dobson, and the risk of alienating more serious (economic) conservatives like him must be taken into account. Josh Marshall is predictably contemptuous toward everything the Republicans are doing, calling attention to a student "filibuster" of the Frist Center at Princeton University. See Talking Points Memo.) The Daily Kos recently provided a very apt interpretation of what is going on:
the "nuclear option" moniker isn't just appropriate because of its threatened effects on Senate comity, as so many current media accounts would have it. Rather, I think the name is appropriate because it captures just how raw a power play Frist's intended maneuver really is.
Exactly! An unwarranted grab for power by one side in a political contest, as we saw by the well-funded left-wing media campaign pushing John Kerry's election last fall, generally elicits an equal but opposite reaction by the other side, in a process of mutual escalation that continues until one side or the other backs down.
The ethics of bluffing
The "nuclear" metaphor may carry more extremist connotations than is really warranted, but it does shed light on a very apt precedent or model on which to base our decision on this question. Back in the early 1980s, many antinuclear activists cited the position paper of the Roman Catholic Church on nuclear weapons and the ethics of the strategy of nuclear deterrence. Is it moral to base a defense posture on the threat of using weapons of mass destruction that would kill millions of people? The Catholic bishops said that nuclear deterrence could be justified as long as it serves to prevent war from breaking out, but that the actual use of such weapons could never be permissible. The logical inconsistency of this position was all too transparent, but one could not seriously expect divinely-oriented thinkers to articulate a military strategy, any more than generals could give a sermon. Likewise, in the situation today, one could say that threatening to make the "nuclear" rules change is OK as long as the GOP senators don't actually follow through with their threat should the Democrats call their bluff. This highlights the difficulty, or near impossibility, of average citizens weighing in on an issue pertaining to how the Senate runs its own business.
Compromise: a virtue?
In the Outlook section of Sunday's Washington Post David Broder, brought a sensible perspective to the debate, urging the Democrats to compromise for practical reasons, not because he favors the judges. He believes the Democrats are in a losing position but don't yet realize it. There are many signs, however, that many if not most Democrats reject compromise outright, thinking the tide of history has turned in their favor. Yesterday Al Gore spoke to a MoveOn gathering, indulging in ever-more strident sarcasm. Curtailing the filibuster would "undermine the rule of law"? Utterly ridiculous. On the local front, a letter by a clergyman in today's Staunton News Leader referred to "Teams of raving fascist idiots in Washington D.C. calling themselves 'the Republican Party'." Well, isn't that special? There can be no compromise with people who think like that.
|Reasons to be "pro-nuclear"
|Reasons to be "anti-nuclear"
|It is the only way of tackling the underlying problem of too many elitist, unaccountable judges who lack respect for our nation's cultural heritage.
|Curtailing the filibuster might come back to haunt the GOP if they lose a majority in the Senate; it would raise the stakes in the next elections even higher.
|It would reward voters and conservative activists by carrying out policy pledges, thus living up to accountability standards.
|It would risk alienating moderate and libertarian voters who don't want to go that far.
|Flinching now would dishearten Republican activists while rewarding Democrat obstructionism, encouraging even stiffer resistance by leftists.
|Republicans are on weak moral ground because they once filibustered against Clinton judicial nominees.
|It would send a clear message that Republicans will not put up with diversionary nonsense and calumnies about Republican "extremists" from the left-fringe Democrats forever.
|It would break a long-standing impasse, set the stage for a policy dialogue on new terms, and make it possible for moderates in both parties to start working together again for the public good.
How far to go?
Most Republicans are aware that restricting use of the filibuster could come back to haunt them some day, which is why there is so much reluctance about carrying out the threat. At the same time, there is an increasing awareness within GOP ranks that, if they want to get anything significant done in Bush's second term, it's now or never. The main problem is not "extremism" on the Republican side, but the inability of most Democrats to accept minority status. They never really came to terms with their historic defeat in 1994, which goes a long way toward explaining the feeling many of them had that President Bush was not legitimately elected. In the end, one's position on the otherwise-arcane procedural question depends on one's view of the fundamental public policy issue of whether or not the judicial branch has gotten out of hand by setting precedents and issuing rulings that facilitate and even encourage lawlessness and immorality. If you think that is the case, as I do, you need to take a serious look at the "nuclear option" as being our last best hope for serious legal reform. In politics as in life, opportunities that are not seized while the iron is hot are quickly lost forever.
Finally, it must be admitted that the Democrats brought this situation upon themselves. They've been spoiling for a showdown all along, confident that enough "common sense" (or wishy-washy?) Republicans will once again opt for getting along rather than getting ahead. As one who shares some of the moderates' discomfort with some of the more zealous religious conservatives, I am very attentive to opposition voices, at least the sensible ones. The fact that some moderate Democrats such as Joe Biden have offered compromises is encouraging, but at this late date it may not be enough. He, Lieberman, and others had a chance to distance themselves from MoveOn, et al., and now it's time to see which side has more determined support. If Republicans can't stand united against a patently bogus political campaign by far-left Democrats, they really don't deserve to govern the country. Backing down now would be tremendously disheartening to Republican activists, forfeiting a dynamic resource for future campaigns.
That leads me to the reluctant conclusion that the Republicans in the Senate must press ahead with a vote on the rules change, as long as there is a clear understanding that the added power will be used responsibly, and for clear principles. The power to either save the Republicans' long-term reform agenda, or put it in serious jeopardy by catering to fund-raising interest groups or certain factions within the party, is now in the hands of Senator Frist. If he lets majority control be used to advance an agenda that is not broadly supported within the party, there will be hell to pay one day, and the Democrats will not be in any mood to play nice when they eventually regain majority status. (It will happen some day, Grover Norquist notwithstanding.) If the Republicans flinch out of an exaggerated sense of duty to preserve (or bring back?) "good feelings" on Capitol Hill, they will cripple themselves for years to come. Once again, the Democrats will have succeeded in playing them for fools.