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April 09, 2005


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.

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.

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.

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.

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)?


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.

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.

"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.

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.

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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