Collateral Damage from the Nuclear Option

Republicans and conservatives are in high dudgeon over Senate Democrats' refusal to let the Senate vote on some of President Bush's judicial nominations. "This filibuster is nothing less than a formula for tyranny by the minority," says Senate Majority Leader Bill Frist.

Frist speaks for many conservatives who want to change the rules of the Senate on a simple majority vote, to eliminate the filibuster for judicial nominations. Fifty-five Republicans, 55 votes to change the Senate's rules, case closed.

But those conservatives are being ahistorical, short-sighted, and unconservative. Judicial nominations are important, but so are our basic constitutional and governmental structures. Conservatives aren't simple majoritarians. They don't think a "democratic vote" should trump every other consideration.

The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it. Everything about the Constitution -- enumerated powers, separation of powers, two bodies of Congress elected in different ways, the electoral college, the Bill of Rights -- is designed to protect liberty by restraining majorities.

The Senate itself is apportioned by states, not by population. California has 53 members of the House to Wyoming's one, but each state gets two senators. If each senator is assumed to represent half that state's population, then the Senate's 55 Republicans represent 131 million people, while its 44 Democrats represent 161 million. So is the "democratic will" what the 55 senators want, or what senators representing a majority of the country want? Furthermore, the Senate was intended to be slower and more deliberative. Washington said to Jefferson, "We put legislation in the senatorial saucer to cool it."

The Founders didn't invent the filibuster, but it is a longstanding procedure that protects the minority from majority rule. It shouldn't be too easy to pass laws, and there's a good case for requiring more than 51 percent in any vote. And supermajorities make more sense for judicial nominations than they do for legislation. A bill can be repealed next year if a new majority wants to. A judge is on the bench for life. Why shouldn't it take 60 or 67 votes to get a lifetime appointment as a federal judge?

Throughout the 20th century, it was liberal Democrats who tried to restrict and limit filibusters, because they wanted more legislation to move faster. They knew what they were doing: they wanted the federal government bigger, and they saw the filibuster as an impediment to making it bigger. As Norman Ornstein of the American Enterprise Institute writes, the filibuster "is a fundamentally conservative tool to block or retard activist government."

Conservatives know this. For decades they have resisted liberal efforts to grease the Senate's wheels. In the 19th century, Senate debate was unlimited. In 1917, at Woodrow Wilson's prodding, the Senate adopted Rule 22, which allowed 67 senators to invoke cloture and cut off a filibuster. In 1975 that quintessential big-government liberal Walter Mondale moved in the post-Watergate Senate to cut off debate with a simple majority, to make it that much easier to advance the Democrats' legislative agenda. Conservatives resisted, and the Senate compromised on 60 votes to end a filibuster.

Conservatives may believe that they can serve their partisan interests by ending filibusters for judicial nominations without affecting legislative filibusters. But it is naïve to think that having opened that door, they won't walk through it again when a much-wanted policy change is being blocked by a filibuster -- and naïve in the extreme to think that the next Democratic Senate majority won't take advantage of the opening to end the filibuster once and for all.

In the play A Man for All Seasons that great conservative St. Thomas More explained to his friend Roper the value of laws that may sometimes protect the guilty or lead to bad results. Roper declared, "I'd cut down every law in England ... to get at the Devil!" More responded, "And when the last law was down, and the Devil turned 'round on you, where would you hide?"

American constitutional government means neither majoritarianism in Congress nor acquiescence to the executive. If conservatives forget that, they will rue the day they joined the liberals in trying to make the Senate a smaller House of Representatives, greased to make proposals move quickly through the formerly deliberative body. The nuclear option will do too much collateral damage.

The nuclear option will do too much collateral damage.

Nonsense!

The "nuclear" option will be a reality with the next Dem senate majority (which will be sooner than some expect due to grass roots Republican disaffection with wobbly Senate Republicans.)

SENATE REPUBLICANS

Try thinking of it as the COURAGEOUS OPTION!

The other option is to go down in history as a pack of wobbly appeasers that have no idea why they lost the next election.

You know this writer is doing his best to carry the democrap's water when you read the following obfuscation/misdirection: "Throughout the 20th century, it was liberal Democrats who tried to restrict and limit filibusters, because they wanted more legislation to move faster." This constitutional option of going to the 51 votes has not one damn thing to do with legislation! Democrats and their servant journalists are liars, plain and simple. And it ticks me off that they continue to get away with this sort of lying bevause they have such disadain for the populace's discernment. They've been getting away with it in the black community for fifty years, so they think it is the best approach, obviously.

If each senator is assumed to represent half that state's population,

What a disappointment. Libertarians really are not very American after all. Why base an argument on this irrelevant premise? Surely this guy knows that Senators were intended by the Founders to represent the interests of the States, not percentages of population, which is why they were selected by legislatures, not popular vote, until the 20th century.

Conservatives may believe that they can serve their partisan interests by ending filibusters for judicial nominations without affecting legislative filibusters. But it is naïve to think that having opened that door, they won't walk through it again

It was the partisan democrats who "opened that door." Additionally, I believe the Republicans are intentionally allowing this to be dragged out for their own political agenda (getting re-elected). I'm betting they'll string this out until they feel they're reaching a point of diminishing returns. They will then invoke the Constitional (not nuclear) option.

When the Dems gain control of the senate & the white house they will activate the "nuclear option" faster than you can say Chuck Schumer.

EXACTLY. Bet the farm on it. With the media carrying the water all of their current objections to the issue will be forgotten, just as their objections to using filibuster to block judges in 98 are glossed over now. The Pachyderms in the senate need to act from principle and change the rules to insure that judges get a fair up and down vote.

"I'm betting they'll string this out until they feel they're reaching a point of diminishing returns. They will then invoke the Constitional (not nuclear) option."

You may well be right. I wish they would use this "dragging out time though to better educate our citizenry. Instead of jaunting around to the Middle East running for president, Senator Frist needs to be in Washington orchestrating this Nuclear option. (As much as we may dislike the term Nuclear it's going to stick good--I have no problem with that.) But I would like to see some "control rods" for the nuclear option. First of all the public should be shown what a true filibuster is and force the demorats to actually keep talking for days. Then they should explain that, for a judge who had the clear backing of a majority of the senate, the filibuster has never been used to block his or her nomination. Then the Republicans should hold public Senate testimony regarding the advisability of changing the rules. And finally, change the rules and pour those judges through faster than greased lightning.

I agree with you whole heartedly. I really like your ideal of making the rats do a REAL filibuster! Instead of saying "ok we're filibustering" and then everyone goes home, make them stand up for hours spewing bovine scatalogy and THEN change the rules ;-)

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