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Going Nuclear
by david   May 16, 2005
senate nuclear

It's likely to happen this week. This is (again, likely) how it will play out:

The senate judiciary committee will send to the floor one or two controversial judicial nominations (most likely Priscilla Owen) who were blocked when Bush submitted them during his first term. After a modest term of debate, the senate leadership will try to call a vote the nomination(s). The Democratic opposition will begin a filibuster. The senate leadership will call a vote of cloture to stop the filibuster, which requires that 60 senators vote to end debate. They will not be successful. Vice President and senate president Dick Cheney will then declare the super-majority cloture rule unconstitutional, and call for a vote to change senate rules to allow a simple majority (51 senators) to call cloture end filibusters (supposedly only applicable to judicial nominees). The vote to change senate rules requires only 51 votes -- in the likely even of a tie, Cheney himself will cast the deciding vote and, just like that, the filibuster will no longer be used against judicial nominees.

Spelled out this way, the whole tactic does sound a bit like dirty pool, but doesn't seem carry the grave weight of the debate over, say, abortion or the Iraq undeclared-war. That is, until you stop and consider the far-ranging implications of de-fanging the filibuster.

First off, on a purely abstract level, the filibuster is one of the few remaining tools in our system which protects the minority from the tyranny of the majority. In a democratic society, this is a big deal. When a small majority is able to decide the fate of a nearly equally-sized minority, the potential for abuse of power and position in favor of a slim majority ideology is high. Also, the potential for abuse of power based upon mendacity is high, since one need only convince a relatively small group. What the filibuster does is force radical ideology to move back toward the center, by requiring a larger (60%) majority be on board with an issue. By forcing the majority to attract a larger percentage of the population to favor its issue, it is assumed that that issue must be more centrist, and in the best interest of the nation at large. While I'll be the first to admit that such a protection can be as much a stumbling block to progressive legislation (see the entire early history of the civil rights movement for examples of this) as it is to, say, radically conservative judicial appointments, it is nonetheless necessary to ensue that government, whatever the ideology, does not step too far beyond the wishes of the mainstream populace.

Beyond the abstract, though, there are some very specific reasons the current administration and congressional majority want to ditch the filibuster. One might wonder why a president whose percentage of successful judicial appointments is higher than that of any modern president (according to conservative think tank the American Enterprise Institute, Jimmy Carter had 93.1% of his appointments confirmed, Reagan had 96.1%, Bush Sr. had 78.1% and Clinton 87.9%, while GWB has had 96.6% of his judicial nominees confirmed by the senate) is willing to make such a high-profile move to push through a couple more wildly activist judges. Ultimately, for the administration, this is not about a handful of federal judges -- it is about the Supreme Court. You see, Chief Justice Renquist is likely to step down this year and, while it's unlikely that anyone much more conservative that Renquist will be nominated to fill the vacated ninth seat, it is likely that Bush will nominate Justices Thomas or Scalia to Chief justice. Either nomination is bound to raise an uproar, as either is sure to tilt an already moderately conservative court in an even more conservative direction. In addition, Justice Stevens, the oldest sitting justice (at 85), and one of the most liberal, while in robust health for his age, stands a good chance of stepping down sometime in the next three years due purely to his advanced age. Should he (or any other moderate or liberal justice) need to be replaced, the GWB administration could stack the court with a wildly conservative ideology, effectively shaping public policy for decades to come. In order to carry out either of the two described appointments in a way most favorable to his goals and ideology, the filibuster must be eliminated as a tool to block radical judicial appointments.

While this is the most likely reason for the rush to the "Nuclear Option" (as originally described by conservative Republican Senator Trent Lott of Mississippi), many (including me) suspect that this is simply a small facet of a much larger plan to circumvent the will of the mainstream American people in favor of a radical conservative ideology. You see, issues like abortion and social security and gay marriage and environmental protection are hot-button, politically charged issues about which public awareness and concern is high. Radically changing current policy in any one of those areas is likely to be met with stiff resistance, as there is existing national debate on these issues already, and the public's passion, on either side, is fierce. On issues like senate procedure, though, public interest and awareness (not to mention understanding of the complex implications of such change) is relatively low. The confusion is best illustrated in recent polls, where a healthy majority of Americans said that current filibuster rules should remain in place, but then contradicted themselves by saying that every presidential nominee deserves a straight majority up-or-down vote (that these notions are in direct conflict seems lost on most Americans), and that more Americans admitted to closely following the Michael Jackson trial than the "nuclear" debate. So, by attempting this procedure change, the administration and congressional leadership are testing the waters for a strategy which, after just a few straight majority votes on matters of senate procedure, would create an extraordinarily favorable circumstance by which even the most controversial of legislation or appointment (judicial or otherwise) could be passed by 50 senators and Dick Cheney, with the opposition not even having enough tools to force moderate debate. If it turns out (as the leadership suspects) that there is little public interest in a handful of seemingly minor rule changes, the door is suddenly wide open for this administration to push a potentially wildly radical agenda, with little or no input (or even attention) from mainstream America.

Admittedly, this is a worse-case scenario. But it is worth worrying over. And I think this is a place where the majority of Americans, from mainstream voters of Faith to libertarians to Eisenhower Republicans to Clintonians to, yes, radical lefties like me, can agree: what's at stake here are protections for the underdogs, for the mainstream, for the center of American politics and social policy, where most of us sit. In order to continue to ensure that a large minority are not tyrannized by the ideology of a small majority, we must make our elected officials aware that we do care about Senate procedure, that it is not okay to change the filibuster rule, that it is not okay to "go nuclear."


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