Notes on the Nuclear Option -- Part XIII

by Kagro X

The latest filibuster discussion at The Decembrist reminds me that I really haven’t discussed in this series on the actual merits of the practice itself, as opposed to the mechanism by which the nucleo-cons seek to end it.

DHinMI pointed me back to Mark Schmitt’s place, where I’d been earlier in the day and made a (ultimately useless) mental note to myself about two great points he makes in “Defending the Filibuster (Again)": 1) that it “is a measure of intensity, passion and commitment, a factor that a democracy should try to incorporate,” and; 2) “that procedural reform in the 1940s, 50s and 60s was built on the assumption that if the rules were different the results would change…. And yet, the result in practice is exactly the same: antigovernment Southern conservatives control the game, just as solidly under the new rules as under the old."

But it was the second filibuster piece of the day that reminded me of something in particular that needed addressing.

Commenter Steve offered this:

Assume the Democrats began a filibuster today of Bush's remaining 10 nominees. The Republicans force them to continue it for a few days. The issue dominates the news, public opinion is heard, polls are taken. The public's reaction may well cause one side or the other to back down. And if not, the issue will still be high in the public mind, and someone may have to pay a political price in 2006.

Compare this to past practice, which involved blocking nominees by using tactics like anonymous holds and "blue-slipping." Most people have no idea that Clinton had over 60 nominees who never got an up-or-down vote, because of the silent use of these techniques. The filibuster is far, far superior, because it results in a determination of whether the minority party is supported by public opinion.

One of the leading pro-nuclear legal scholars, John Eastman, likes to argue that filibustering judicial nominations is unconstitutional because the founders intended the President to have the preeminent role in the process, not a co-equal one with the Senate. He bases this conclusion in part on contemporaneous notes of convention delegates, certain passages of The Federalist Papers, and his own semantic understanding of what "advice and consent" means.

Eastman took great pains in his testimony before the Senate Judiciary Committee (PDF) to document instances in which the founders argued that a preeminent role for the President was preferable because it would place the political accountability for those nominations in one person. Eastman cites the writing of Massachusetts delegate Nathaniel Ghorum, the agreement of Pennsylvania delegates James Wilson and Governeur Morris, of Virginia delegates James Madison and Edmund Randolph, and of New York delegate Alexander Hamilton. He cites the early constitutional commentary of Joseph Story, and of James Iredell, a delegate to the North Carolina Ratification Convention and later a Supreme Court Justice, and even the later Presidential grumblings of John Adams. More than seven pages – fully 1/3 of his testimony – went to this point.

And yet, in just two paragraphs, Steve sets this entire argument on its ear. The judicial nominations process, and the names and faces that run through it, are today a dead letter with the American public. Nominations draw serious notice – that magical function which supposedly gives rise to accountability – only when there’s a fight over them (or when they put the words “pubic hair” on national television). And the filibuster – at least, the old school filibuster – is one of the highest-profile fighting weapons available. A judicial filibuster, in other words, would do more to focus public attention on nominations, the President who’s making them, and the Senators who seek to block it than perhaps any other parliamentary tactic. It’s certainly more of an “accountability moment” than the blue slip ever was.

It might even be said that perhaps nothing suits this President more than a “you’re either with us or against us” accountability moment. Let him make the case for these nominees, and while we’re at it, let Frist make his case for his nuclear option. If the public is demonstrably behind them on either count, you’ll likely see cloture invoked, and the need for nuclear tactics averted.

Comments

[Steve]

Thanks for the citation! It's always a pleasure to find out that someone actually read my comments.

Take my argument a step further, if you like. I give the Republicans credit for being at least as smart as me; they surely realize that a Democratic filibuster has the potential to serve as an "accountability moment." And if they were confident that the public would punish the Democrats for obstructing the agenda in this fashion, they would have no need to talk about the nuclear option. They would simply let the filibuster play out, use it as a campaign point in the upcoming elections, and end up with a supermajority that could confirm any judge at all. The benefits would far outweigh the cost of making these 10 judges wait another 2 years for confirmation.

To me, then, the fact that the nuclear option is even on the table suggests the Republicans have serious doubts that the public will side with them in the event of a filibuster. I think they are right to harbor these doubts. Setting aside the partisans who are already committed, the balance of the public tends to like it when there is some degree of gridlock in the system. They fear raw power and don't like to see any party get too much of it. And at the end of the day, when it comes down to whether the Democrats acted unfairly by giving Bush only 219 of his 229 judicial nominees (or is it 205 of 215? I have seen both numbers), it's hard to imagine these swing voters punishing the Democrats over it.

Whether the Democrats can invoke a similar "accountability moment" over the use of the nuclear option is debatable, in my book. To the extent the Republicans are holding off, I suspect it relates more to not having the votes yet than to fear of accountability in 2006.

[Kagro X]

Credit where credit's due, Steve. Another good point made here.

I'd also agree that holding off on the nulcear option has most to do with lacking votes. I'm told George Stephanopolous was out there yesterday, speculating that the nuclear option was on hold. I'm wondering if they'll just wait for January '07, and try it the "traditional" way.

[DemFromCT]

Appreciate your comments as well, Steve. I've addded a post today about the business community getting nervous about all of this... there's a GOP constituency that's not happy about death-struggle tactics.

[Kagro X]

What do they call those business-oriented Republicans who aren't comfortable with death-struggle tactics, again?

I know there's a word for it. They're, like, sorta mainstream-ish, and they like, uh, whaddyacallit... stability, and stuff like that.

Oh man, I totally know there's a word for it. I can't believe this! What's that word, where you don't really like a lot of change, and you prefer a sort of hands off approach to governance. It starts with a "c" but I just can't put my finger on it.

Oh well.

[wagster]

Kagro X:

I've been searching for someone who knows the ins and outs of this issue to explain something to me: the Republicans are arguing that the confirmation of judges isn't among the things the constitution requires a super-majority for. Obviously, there are LOTS of other things that aren't mentioned in the constitution as requiring a super-majority. Could not just the filibuster for judicial nominees, but the filibuster in general be liable to the same mechanism the Republicans are contemplating using (i.e., the constitutional ruling from the chair)?

[Kagro X]

Wagster:

Yes, absolutely. There's nothing about the filibuster of judicial nominations that's special or distinguishes it from legislation in terms of the "constitutional" argument for the nuclear option. In fact, the Gold/Gupta article in which the "game plan" for the nuclear option is laid out makes almost no mention of judicial nominations in laying out the case.

The only reason the nuclear option is connected to judicial nominations is because that's where the Republicans think they have the cover to use it. They've tacked on the argument that nominations filibusters are unconstitutional under the "advice and consent" clause, a reason which has nothing to do with the rulemaking power that supposedly gives them the constitutional right to change the rules.

So yes, they could use the same mechanism to eliminate not only the filibuster on legislation, but theoretically, any of the tactics Democrats plan to use to retaliate.

[wagster]

Thanks for the explanation. That might be the wedge point where moderate Republicans can be peeled off: that the nuclear option will in the long run diminish ALL senatorial privileges. After all, as Matt Yglesias has argued, the filibuster is probably more useful to conservatives than it is to liberals.

[Petey]

"Whether the Democrats can invoke a similar "accountability moment" over the use of the nuclear option is debatable, in my book. To the extent the Republicans are holding off, I suspect it relates more to not having the votes yet than to fear of accountability in 2006."

I think there's a cause and effect between those two things. I think Frist is having trouble rounding up the votes in large part because Senators worry about the political fallout.

-----

"The only reason the nuclear option is connected to judicial nominations is because that's where the Republicans think they have the cover to use it."

I think you have your cause and effect on this backwards. I think they worked hard to try to create a rhetorical cover tailored specifically for judicial nominations because that's the only place they actually want to kill the filibuster.

[Kagro X]

Petey, yes, that's the only place they've currently admitted interest in using the nuclear option, although I'm not yet convinced that's the true extent of it.

Still, yes, I've misstated this. The nuclear option was never of any widespread interest to most Republicans until they ran into this particular problem. What's artificially being connected is the "constitutional" logic behind the nuclear option itself (the Art. I, sec. 5 argument) and the judicial nominations roadblock (which gave rise to the Art. II, sec. 2 argument).

They have nothing to do with one another save that they're both supposed to be rooted in the Constitution, which gave rise to the preferred Republican nomenclature for it.

[victor osalde]

under the guise of minority rights and rule of law the democrats have used the courts to get their way on just about all issues --gay marriage -abortion -prop 187 in california.etc etc --yet the people hold oppisite views to how these activists judges are stripping away the moral fabric of this country.it is time to bring these issues to the forefront and let the people know who is responsible for the laws being interpreted by looney leftist wackos. i will also hold the republicans responsible if they dont hold firm and do whatever needs to be done by any means necessary to end judicial activism that is discriminatory against religious persons . the republicans have the power granted by us the people to do what we elected them to do . win the war on terrorism. end judicial activism . the 2 issues that fueled this election

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