May 23, 2005

The Constitutional Option, Averted for Now

First of all, I do think John McCain is one of the most unfortunate legislators in history. The man should be in the sequel to National Treasure: he's certainly done tremendous damage to a document that's pivotal to our history. (Though of course it's the Constitution he's trashing, rather than the Declaration of Independence. He's been especially destructive to the First and Second Amendments. You know: the important ones.)

That said, the rightosphere should take a chill pill regarding today's compromise in the Senate. There's a lot going on here, and everyone has his or her own theory; here's Blackjack's:

I'm not going to sugarcoat it -- the Republicans probably could have gotten a better deal than they did. What I can do for you is tell you why they jumped on the deal and it is also the reason why this deal is ultimately a net win for Republicans. The answer is just three words long:

Janice Rogers Brown

Did you honestly think that opposition to Janice Rogers Brown was based on political philosophy? Yeah, right -- and I'm Pat Freaking Boone. The reason that Democrats didn't like (read: were scared to death of) Brown is because they know two things:

1. Their most solid voting bloc is African-Americans
2. This bloc is slowly eroding over time.

True enough. But the real reason behind this compromise—in my mind—is a second proper noun:

Hillary Rodham Clinton.

The odds are good—or, if you like, the risk is real—that she'll end up in the White House in 2009. If you believe (as I do) that her true convictions are considerably to the left of her behavior in the Senate, you should take very seriously the idea of her nominating judges, particularly to SCOTUS.

The judicial filibuster is a tool that we may well need someday in the not-too-distant future.

I know everyone's going to get mad at me for saying this, but I'm with George Will on this one:

Some conservatives say there is a "constitutional right'' to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.

     Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms—separation of powers, bicameral legislature, etc. The filibuster is one such mechanism—an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.

     The crucial, albeit unwritten, rule regarding judicial nominees was changed forever 18 years ago by the Bork confirmation fight: Now both sides in the Senate feel free to judge and accept or reject nominees on the basis of their judicial philosophies. So, conservatives, think:

     The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?
 And pruning the filibuster in the name of majority rule would sharpen a scythe that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations—and of treaties, too?

Let's try to think long-term, here.

Hat tip: Jeff G., with whom I cannot agree this particular time.

Posted by Attila at May 23, 2005 11:32 PM

I actually agree that the filibuster didn't need to be thrown away. I think a modification of the filibuster rules would have been the most appropriate: let the minority party expend one filibuster per 6 month period, so that they have to pick only those nominees they consider the most egregious, to block. For the rest of them, don't let the minority party grind the whole government to a standstill.

Posted by: Ciggy at May 24, 2005 06:48 AM

I don't understand what makes anyone think if the roles were reversed (as they may be someday) that the democrats would hesitate to change the rules to end a republican filibuster.

They have no problem exercising political power.

Posted by: Pile On® at May 24, 2005 10:32 AM

I think you've hit the nail on the head: I don't think it's likely that Hillary will win in 2008, but as you put it, "the risk is real" that there will be a Democrat President in 2008, 2012 or 2016, and the threat is inevitable that there will someday in my lifetime be a Democrat president, and the threat is high that there may yet be a non-GOP President and non-GOP Senate concurrently. History tells us that one-party dominance is never sustained perpetually; the other side bitches and whines and moans and eventually figures out what it has to do to get electable again. Sometimes it takes years, sometimes decades. And we CANNOT have more Breyers or Souters, not just now, but forever. You're right: think long term.

I reject the notion that the filibuster is unconstitutional. It may or may not be ill-advised, undemocratic, anti-majoritarian and blasted inconvenient (when we're in the majority, that is), but I do not accept its unconstitutionality. I'm not necessarily saying that I would have opposed changing the rules in the legitimate way, but I'm a law-and-order type and an originalist; I like rules, I like people playing by rules, and I dislike the reading of new and opportunistic meaning into the text. I'd be interested to hear Scalia's take on this, actually - I almost wish the matter had gone to court such that we could hear him tackle it.

Of course, the blogosphere is going absolutely nuts, and it is all profoundly silly; one caller to CSPAN this morning demanded that these Senators be impeached, saying we were now "practically communist" (the irony of which simply can't be overstated). I hoped, perhaps foolishly, that this would be an isolated example, but nay - reading comments on Reid Report, Chris Mowder, GOPbloggers, Blogs for Bush, and so, so many others, it looks like there really HAS been a nuclear option detonated today: as far as 2008 is concerned, Frist and McCain have effectively rendered themselves radioactive.

Posted by: Simon at May 24, 2005 10:36 AM


Snowe for president, you kill me Simon.

Posted by: Pile On® at May 24, 2005 10:50 AM

An absolute and unmitigated disaster for Conservatives. The Seven Dwarves sell out the party. That snapping sound you heard are the Republican purses snapping shut--no more money for these clowns. By the way, this Warner is a real piece of, uh, work. He abandoned his party's nominee in Virginia, Oliver North, and got a Democrat elected Senator. Now this. Get rid of these RINO's! They are not only useless, they are downright harmful: they repeatedly betray their party.

I think the Republicans may end up losing control of the Senate over this. Why vote these jerks in if they just vote like Democrats? Also, McCain is on more drugs than his wife was if he thinks he's ever going to get the Republican nomination. He will, however, probably run a vanity candidacy like Perot, and we'll get President Hillary with about 43% of the vote just like Bubba did.

One final point: guess who just LOVES last night's sellout? None other than Andrew Sullivan. As I mentioned the other day, this guy is a phony Conservative, an upscale, fumigated version of David Brock. He advocates gay marriage IMPOSED BY JUDGES (not voted in by popular vote or legislatively which would actually involve the effort of convincing people that your cause is right), a huge increase in the Federal gasoline tax, raising taxes to "decrease the deficit," giving terrorists Geneva Convention protection, and on and on and on. I challenge anybody to show me how this fraud qualifies as a "Conservative" on anything.

Posted by: Tim at May 24, 2005 10:57 AM

No real conservative has taken McCain seriously for years, given his gun-grabbing tendancies.. And McCain-Feingold sealed the deal. "The audience is listening."

And I haven't read Sully on any kind of regular basis since he decided gay marriage was just as important as the war on terrorism. If I want to read a provocative lefty-with-integrity, I'll read Christopher Hitchens, who hasn't abandoned Marxism, but still understands that democracy is a Good Thing (particularly given some of the alternatives out there).

The fact is, I'm in favor of gay marriage--but I still think Andrew is out of his pretty little head. Reynolds calls him the "emoter-in-chief." No one takes him seriously any more.

Posted by: Attila Girl at May 24, 2005 12:00 PM

I'm with you. Hillary has a real chance in 2008, & the people who don't think she does are part of the reason. They can't see how the right wing shoots itself in the foot. The Republican primaries in 2008 will be a race for the blessing of the Religious Right, just as the Dems in 2004 had to suck up to MoveOn, & Kerry couldn't do a Souljah on Michael Moore.

Hinderaker is giving a Sully a run for his tiara today....

Posted by: beautifulatrocities at May 24, 2005 12:21 PM

Why is it that the moderate or liberal republicans hand a victory to the democrats and if the conservatives complain about it, it is the right wing that is shooting itself in the foot?

Posted by: Pile On® at May 24, 2005 04:48 PM

Keep in mind which Democrats we're dealing with here: other than Byrd (who, like McCain, should be discounted) this is people like Joe Lieberman. There is a chance that when they say they won't filibuster in the future, they really won't. (They could abuse the "extraordinary circumstances" notion, but if they do we still have the nuclear option.)

And we got three judges an up-or-down vote: the ones who are likely to win that up-or-down vote.

There's plenty of face-saving language in the agreement, but I'm not sure I see it as a Democratic victory in terms of how it will really play out. After all, Bush is going to keep submitting the names of constructionists, and if the Dems filibuster they're going to have to show some kind of good cause.

We all know Scalia got 97-0 vote (or whatever it was). If the Dems filibuster in the future, they'll have to show that the person is way to the right of Scalia.

Posted by: Attila Girl at May 24, 2005 05:11 PM

Speaking for myself and some others I have read, it's not so much that a compromise was made, because that has to be done from time to time to get things done. It's that, once again, the GOP has given in to the minority party. Just once, I would like them to act like the majority party they are. And this was the time.

Throw McCain out.

Posted by: William Teach at May 24, 2005 05:28 PM

You make some good points Attila, but here is why I think it was a victory for the dems.

First, I understand politics is the art of compromise, or something like that. My frustration comes because the dems compromise when the don't have the votes and the republicans compromise when they do.

Now, this isn't over, and the next time the stakes are going to be higher and it is going to be even harder to use the "nukular" option because the dems will say "hey we let some of these radicals get voted on, we have tried to be reasonable but this is just to much". Then the republicans will really fold.

Posted by: Pile On® at May 24, 2005 06:25 PM

Depends on which Republicans we have. That's why we need to think hard about '06: obviously, I'd love to get McCain out of the Senate, but the other thing we need to work toward is a 60-senator majority. Then we'll be filibuster-proof.

Actually, we don't need 60 Republicans, so much as enough Republicans that, added to a handfui of Democrats who are willing to suspend partisan games, the total is 60. Then we can get some business done.

And, Pile On, I agree that the Republicans have had tremendous difficulty "getting" that they are the majority party, but at least they considered bringing out the big guns this time in terms of changing Senate procedures--so they're on the right track. The fact that this was averted by a gang of moderates doesn't change the fact that the GOP is learning to think like a majority party.

But it will only work if we stop thinking in terms of "RINOs vs. 'Real Republicans.'" That's hard for a lot of people to do.

Posted by: Attila Girl at May 24, 2005 08:29 PM

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