WASHINGTON — Thanks to the “Gang of 14” centrist senators,
there’s been a temporary ceasefire in the filibuster battle, and
not a moment too soon. The hypocrisy on both sides was getting to
be too much to bear. Sen. Robert Byrd piously invoked the right to
“free speech,” as if the Democrats just wanted to debate the
fitness of the president’s nominees, rather than block them
categorically. Majority Leader Bill Frist insisted “Republicans
believe in the regular order of fair up and down votes” free from
“procedural gimmicks like the filibuster,” conveniently ignoring
his own role in an attempted filibuster of Clinton nominee Richard
Paez in 2000.
Many conservatives are unhappy that the compromise agreement
preserves the judicial filibuster as a weapon that might be wielded
“under extraordinary circumstances.” They should count their
blessings and hope the deal sticks. Galling as it may be to have
qualified nominees obstructed, changing the rules mid-game could do
serious damage to the Senate’s ability to check what Madison called
“the facility and excess of lawmaking.” Specifically, if the
Republicans trigger the nuclear option, they may end up nuking the
legislative filibuster as well.
A “second strike” from a future Democratic majority could be
used to prevent minorities from filibustering legislation that the
majority favors. “Once you get the procedural method [of the
nuclear option] through,” says Richard Pious, professor of
political science at Barnard College, “then if you have 50 votes
and a vice president presiding, I think you can do it.” The
procedural method involves the presiding officer of the Senate
(either Vice President Cheney or President Pro Tem Ted Stevens)
declaring that the filibuster is unconstitutional as applied to
judicial nominations.
Why is the judicial filibuster unconstitutional? According to
GOP leaders, when the Framers wanted a supermajority for advice and
consent, they wrote it into the Constitution, as they did for
treaty ratifications. Thus, the Constitution’s silence on
presidential nominations implies that a bare majority is all that’s
required for confirmation. But the same argument applies to the
legislative filibuster: when the Framers wanted a supermajority, as
they did for overriding a presidential veto, they said so. Under
the convenient constitutional logic employed by the GOP, the
legislative filibuster — a time-honored practice — turns out to
be unconstitutional as well. Who knew?
WOULD A FUTURE DEMOCRATIC majority play this game? It’s entirely
possible. Crafty liberals in the punditsphere, such as the
American Prospect’s Matt Yglesias and Slate’s Tim Noah, have
recognized that the filibuster is essentially a conservative
instrument, one that over the long haul operates to the detriment
of liberal goals. If a future Democratic majority agrees, the
nuclear gambit will work as well for them as it will for the
Republicans. The Republican response to this possibility appears to
be, we’ll slip down that slope when we come to it.
Republicanism of the small “r” variety distrusts untrammeled
majoritarianism and favors checks on temporary political
majorities. In the years to come, Congress will once again debate
single-payer health care. Conservatives and libertarians should ask
themselves, do we want to go into that fight with the filibuster,
or without it?
And perhaps the GOP shouldn’t be so quick to throw away the
judicial filibuster either. Decrying “judicial tyranny” is a staple
of Republican rhetoric today: the GOP fears the considerable power
wielded by “unelected, unaccountable” federal judges. Why then are
Republicans so keen to weaken the Senate’s check on future
Democratic presidents’ ability to stack the courts? Writing in
Salon.com, Farhad Manjoo muses, “imagine having 52 Democratic
senators one day, a Democratic president, and the chance to
nominate a real liberal to the Supreme Court. And imagine, too, the
Republicans not having any power to stop you. It’s a delicious
thought.” But it’s not a thought that would occur to a movement
that can’t think past the next election cycle.
Too often in recent years, the GOP has behaved as if it can’t
imagine itself out of power. Few, if any, Republican legislators
opposed President Bush’s assertion, in the Jose Padilla case, that
the president has the power to lock up American citizens without
charges or trial for the duration of the war on terror. Even today
the Senate is debating whether to give the FBI unreviewable
subpoena power: the legal authority to demand financial documents,
medical records, and the like, without the inconvenience of going
before an independent judge. If Bill Clinton had claimed these
powers — or if a future President Clinton were to claim them —
Republicans would be apoplectic. Instead, they cheer the
centralization of power and the erosion of checks and balances.
These are the actions of a party that imagines itself a permanent
majority.
Limited government supporters within the GOP should be alarmed
at this tendency. Nothing in politics is permanent except the drive
for more federal power. True conservatives shouldn’t be in the
business of greasing the tracks.
