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The Nuclear Option

As I’ve noted previously, I have a copy of Barack HopeChange Obama’s audiobook The Audacity of Hope, and I’ve been listening to it, off and on, throughout my workday. Today I began section 2, which contains chapters 2 and 3 (as far as I’ve gotten to date.)

But today’s excerpt had something I found interesting and important. Beginning at about 35 minutes into part 2:

Gaining control of the courts generally, and the Supreme Court in particular, had become the holy grail for a generation of conservative activists. And not just, they insisted, because they viewed the Court as the last bastion of pro-abortion, pro-Affirmative Action, pro-homosexual, pro-criminal, pro-regulation, anti-religious liberal elitism. According to these activists, liberal judges had placed themselves above the law, basing their opinions not on the Constitution, but on their own whims and desired results, finding rights to abortion, or sodomy that did not exist in the Constitution, subverting the democratic process, and perverting the Founding Fathers’ original intent.

To return the courts to their proper role required the appointment of strict constructionists to the Federal bench – men and women who understood the difference between interpreting and making laws.

Those on the Left saw the situation quite differently. With conservative Republicans making gains in the congressional and presidential elections, many liberals viewed the courts as the only thing standing in the way of a radical effort to roll back civil rights, women’s rights, civil liberties, environmental regulation, church and state separation, and the entire legacy of the New Deal.

He then goes on to discuss how the nomination of Robert Bork was defeated, awakening the Right to the fact that they, too, needed “grassroots” organizations to promote and defend their nominees, and defeat those of the Left. He goes on to relate how the Republican majority defeated 61 of Clinton’s nominees,

…and for the brief time that they held the majority, the Democrats tried the same tactic on George W. Bush’s nominees.

But when the Democrats lost their Senate majority in 2002, they had only one arrow left in their quiver, a strategy that could be summed up in one word, the battle-cry around which the Democratic faithful now rallied: Filibuster!

The Constitution makes no mention of the filibuster. It is a Senate rule, one that dates back to the first Congress. The basic idea is simple. Because all Senate business is conducted by unanimous consent, any Senator can bring proceedings to a halt by exercising his right to unlimited debate, refusing to move on to the next order of business. In other words, he can talk – for as long as he wants. So long as he, or like-minded colleagues are willing to stay on the floor and talk, everything else has to wait, which gives each Senator an enormous amount of leverage, and a determined minority effective veto power over any piece of legislation.

Throughout the Senate’s modern history, the filibuster has remained a preciously guarded prerogative, one of the distinguishing features, it is said, along with six year terms, and the allocation of two Senators to each state regardless of population, that separates the Senate from the House and serves as a firewall against the dangers of majority overreach.

There’s another, grimmer history of the filibuster, though, one that carries special relevance for me.

He then goes on to detail how the Southern Democrats used the filibuster to protect Jim Crow and prevent any civil rights legislation from passing. Of course, he doesn’t mention the fact that most of those Senators were Democrats. He mentions Richard B. Russell by name, and names his state, but not his party affiliation.

Then he returns to Bush’s court nominations.

So it came to pass that President Bush, emboldened by a bigger Republican majority in the Senate and his self-proclaimed mandate, decided in the first few weeks of his second term to re-nominate seven previously filibustered judges. As a poke in the eye to the Democrats, it produced the desired response. Democratic leader Harry Reid called it a “big wet kiss” to the far Right, and renewed the threat of a filibuster. Republicans, sensing that this was the time to go in for the kill, announced that if Democrats continued in their obstructionist ways, they would have no choice but to invoke the dreaded “nuclear option,” a novel procedural maneuver that would involve the Senate’s presiding officer – perhaps Vice President Cheney himself – ignoring the opinion of the Senate Parliamentarian, breaking 200 years of Senate precedent, and deciding with the simple bang of a gavel that the use of the filibuster was no longer permissible under the Senate rules – at least when it came to judicial nominations.

To me, the threat to eliminate the filibuster for judicial nominations was just one more example of Republicans changing the rules in the middle of the game.

Uh, right. Like putting up Frank Lautenberg for Senate in 2002 when it became blindingly apparent that the legally nominated but corrupt Robert Torricelli was going to lose his election? A case in which the notoriously “liberal” New Jersey Supreme Court said “It’s OK, go ahead and break your own rules!”? That kind of “changing the rules in the middle of the game”?

“Changing the rules,” yes – but I was not aware that we were in the middle of the “game” of this Republic.

He continues:

Moreover, a good argument could be made that a vote on judicial nominations is precisely the situation where the filibuster’s supermajority requirement makes sense. Because federal judges receive lifetime appointments, and often serve through the terms of multiple Presidents, it behooves the President and benefits our Democracy to find moderate nominees who can find some measure of bipartisan support.

I’ve written on the topic of the Courts on numerous occasions, and I’m going to repeat myself here because this is precisely the kind of post that demands it. Barack Bipartisan Obama said early on in this excerpt, “According to these activists, liberal judges had placed themselves above the law, basing their opinions not on the Constitution, but on their own whims and desired results, finding rights to abortion, or sodomy that did not exist in the Constitution, subverting the democratic process, and perverting the Founding Fathers’ original intent”, subtly pooh-poohing the very idea that results-oriented judges exist on the Left. Once again, I’d like to quote the words of 9^th Circuit judge Alex Kozinski on this very subject:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. – Silveira v. Lockyer, denial to hear appeal en banc, dissenting.

George Will in a piece from 2005 wrote:

When (Senator Harry) Reid endorsed Scalia for chief justice, he said: “I disagree with many of the results that he arrives at, but his reason for arriving at those results are (sic) very hard to dispute.” There you have, starkly and ingenuously confessed, the judicial philosophy — if it can be dignified as such — of Reid and like-minded Democrats: Regardless of constitutional reasoning that can be annoyingly hard to refute, we care only about results. How many thoughtful Democrats will wish to take their stand where Reid has planted that flag?

This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes — “results” — they, like the result-oriented senators who confirm them, consider desirable? If so, in what sense does the Constitution still constitute the nation?

Barack Middle of the Road Obama suggests that the selection of moderate judges should be preferred, since they “benefit our Democracy.”

It’s not supposed to be a DEMOCRACY. It’s supposed to be a CONSTITUTIONAL REPUBLIC. One in which the CONSTITUTION defines and limits the powers of the federal government, and the Judicial branch has to abide by it just like the Legislative and the Executive. It is the Constitution that Senators swear an oath to uphold and defend, not our “democracy.”

“Moderate” judges? I’ll let Scalia answer that one, since he’s been vetted by Reid himself and found to pass muster:

What in the world is a ‘moderate interpretation’ of the text? Halfway between what it really says and what you want it to say?

It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.

What ‘we the people’ want most of all is someone who will agree with us as to what the evolving constitution says.

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands. – Antonin Scalia, excerpts from a speech quoted in the New Orleans Times-Picayune, 3/10/04

Then we get to the meat of the excerpt:

Few of the Bush (appellate court) nominees in question fell into the “moderate” category. Rather they showed a pattern of hostility towards civil rights, privacy, and checks on executive power that put them to the Right of even most Republican judges. One particularly troubling nominee had derisively called Social Security and other New Deal programs quote “the triumph of our own socialist revolution” unquote.

Interestingly, Barack I’m not a Socialist Obama doesn’t tell his readers (or listeners) that the “particularly troubling nominee” was Janice Rogers Brown, an African-American woman nominated to the Circuit Court of Appeals for the Washington, D.C. district. Her remark comes from a speech she gave to the Federalist Society, April 20, 2000, entitled “A Whiter Shade of Pale”: Sense and Nonsense – The Pursuit of Perfection in Law and Politics, which I strongly recommend you read. Here’s her quote in context:

There is nothing new, of course, in the idea that the framers did not buy into the notion of human perfectibility. And the document they drafted and the nation adopted in 1789 is shot through with provisions that can only be understood against the supposition that humanity’s capacity for evil and tyranny is quite as real and quite as great as its capacity for reason and altruism. Indeed, as noted earlier, in politics, the framers may have envisioned the former tendency as the stronger, especially in the wake of the country’s experience under the Articles of Confederation. The fear of “factions,” of an “encroaching tyranny”; the need for ambition to counter ambition”; all of these concerns identified in the Federalist Papers have stratagems designed to defend against them in the Constitution itself. We needed them, the framers were convinced, because “angels do not govern”; men do.

It was a quite opposite notion of humanity, of its fundamental nature and capacities, that animated the great concurrent event in the West in 1789 — the revolution in France. Out of that revolutionary holocaust — intellectually an improbable melding of Rousseau with Descartes — the powerful notion of abstract human rights was born. At the risk of being skewered by historians of ideas, I want to suggest that the belief in and the impulse toward human perfection, at least in the political life of a nation, is an idea whose arc can be traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937. The latter date marks the triumph of our own socialist revolution. All of these events were manifestations of a particularly skewed view of human nature and the nature of human reason. To the extent the Enlightenment sought to substitute the paradigm of reason for faith, custom or tradition, it failed to provide rational explanation of the significance of human life. It thus led, in a sort of ultimate irony, to the repudiation of reason and to a full-fledged flight from truth — what Revel describes as “an almost pathological indifference to the truth.”

There were obviously urgent economic and social reasons driving not only the political culture but the constitutional culture in the mid-1930’s — though it was actually the mistakes of governments (closed borders, high tariffs, and other protectionist measures) that transformed a “momentary breakdown into an international cataclysm.” The climate of opinion favoring collectivist social and political solutions had a worldwide dimension.

Politically, the belief in human perfectibility is another way of asserting that differences between the few and the many can, over time, be erased. That creed is a critical philosophical proposition underlying the New Deal. What is extraordinary is the way that thesis infiltrated and affected American constitutionalism over the next three-quarters of a century. Its effect was not simply to repudiate, both philosophically and in legal doctrine, the framers’ conception of humanity, but to cut away the very ground on which the Constitution rests. Because the only way to come to terms with an enduring Constitution is to believe that the human condition is itself enduring.

For complex reasons, attempts to impose a collectivist political solution in the United States failed. But, the political failure was of little practical concern, in a way that is oddly unappreciated, that same impulse succeeded within the judiciary, especially in the federal high court. The idea of abstract rights, government entitlements as the most significant form of property, is well suited to conditions of economic distress and the emergence of a propertyless class. But the economic convulsions of the late 1920’s and early 1930’s passed away; the doctrinal underpinnings of West Coast Hotel and the “switch in time” did not. Indeed, over the next half century it consumed much of the classical conception of the Constitution.

Barack New Deal Obama protests that nominees like Ms. Brown want to “roll back” the “progress” that the courts have brought about. I’ve discussed this before, too. Law professor (and now Dean of the U.C. Irvine School of Law) Erwin Chemerinsky appears on the radio talk show of Republican apparatchik Hugh Hewitt weekly as one of the “Smart Guys,” along with Chapman University law professor John Eastman. Coincidentally, on Wednesday, June 8, 2005 – the day of Janice Rogers Brown’s confirmation to the Appellate position on a partisan 56-43 vote (with only one Democrat crossing the aisle to vote in her favor – Ben Nelson of Nebraska) – the Smart Guys were on Hewitt’s show, and Chemerinski made precisely the same argument. First, Eastman responds to Chuck Schumer’s objection to Brown’s confirmation

You know, I mean, it’s just so preposterous, I don’t even know where to begin. The reason Chuck Schumer is so upset about this is Justice Brown is the kind of judge who will, you know, adhere to the Constitution. And when the members of the legislature, even the exalted Chuck Schumer himself, want to take actions that is not authorized by the Constitution, she’ll be willing to stand up and do her duty, and strike it down. That’s not an arrogance, that’s what the judges are there for, to adhere to the Constitution, and not to let the legislature roll over them and do whatever they want. You know, it really is preposterous. We’ve turned this upside down. The judges that do exactly what they’re supposed to do are demonized, and those that take a powder and let the legislature get away with every abuse, every extension of power imaginable, are touted at the cocktail circuit.

Chemerinsky then throws in the “roll back” language – in his case “shred” – used by Obama:

I think what Senator Schumer is saying, and is absolutely right, is that Janice Rogers Brown’s repeated statements that she believes that the New Deal programs like social security are unconstitutional, is truly a radical view. That’s not a judge who wants to uphold the Constitution. That’s a judge who wants to shred the last eighty years of American Constitutional law. Janice Rogers Brown saying she believes that the Bill of Rights should not apply to the states, would undo the last seventy years of Constitutional law. That’s not a judge who wants to follow the law. That’s a judge who wants to make the law in her own radical, conservative views.

But Eastman understands exactly what Chemerinski – and, by extension Obama, is arguing:

Hang on, here, because Erwin…there’s a wonderfully subtle change in your phraseology that demonstrates what’s going on here. You said she won’t follow the Constitution, and then you said it’s because she won’t follow the last seventy or eighty years of Constitutional law. What happened seventy or eighty years ago that changed the Constitution? There was not a single amendment at issue in the 1930’s that changed the Constitution. Some radical, federal programs were pushed through. Some radical judges, under pressure, finally signed on them, and the notion that we can’t question that unconstitutional action that occurred in the 1930’s, and somehow that defending that unconstitutionality is adherent to the rule of law, is rather extraordinary. There are scholars on left and right that have understood that what went on in the 1930’s was…had no basis in Constitutional law, or in the letter of the Constitution itself.

So Obama wants moderate nominees?

The title of this essay is “The Nuclear Option.” I named it that for a reason. John McCain has caught a lot of flak for preventing the implementation of “The Nuclear Option” with his Gang of 14 who negotiated the compromise that also resulted in Judge Brown’s confirmation.

But he was right.

As we go into the 2008 elections, the Democrats will, once again, control the House and Senate – perhaps with significant majorities. No matter who ends up in the White House, the Senate Judiciary Committee will be run by Democrats, and any and all nominees will be vetted by them. If John McCain wins the White House, then “moderates” are the best we as a nation can expect to see confirmed, but if Obama or Hillary wins, then Republicans will be in precisely the same position the Democrats were in. Filibuster will be the Republican’s only arrow in their quiver.

What do you want to bet that “The Nuclear Option” will be brought up by the Democrats in that event?

At least that’s not a tool the Republicans generously handed them.