Balkinization  

Thursday, May 12, 2005

What is at stake in the nuclear option?

JB

One might well wonder why the fight over President Bush's seven filibustered judicial appointments has become so confrontational. After all, it's just seven lower court appointments. If the President loses, he has gotten about 95 percent of his appointments through, a very high percentage for a President. If the Democrats lose, they simply have to put up with seven more very conservative lower court judges.

In fact, the controversy is about more than whether these seven individuals become federal judges. It is about the relative power of the two parties going forward and about the likely content of constitutional law in the next generation. Both of these things are eminently worth fighting about.

The Republicans currently hold all three branches of government. They have won what I call the "constitutional trifecta." During such periods, all three branches are working more or less in sync with each other, and American democracy, which is full of checks and balances, begins to approach the single minded efficiency of a parliamentary system ruled by a single party and led by a Prime Minister who is the head of the party. Such periods are relatively rare in the country's history and generally presage a significant revolution in legislation, in constitutional interpretation, or both. The last two sustained periods were the 1960s and the New Deal. (The New Deal is probably a better analogy because in the 1960s the liberal wing of the Democratic Party had to rely liberals and moderates Republicans to push through the Civil Rights Act of 1964, the Voting Rights Act of 1965, and many key Great Society programs).

Although the Republicans have won the trifecta, the country is fairly evenly divided in support for Democrats and Republicans (I put it this way because there are many independents who switch allegiances depending on the candidate or issue). So the current situation represents a serious malapportionment of power. The Republicans have too much power given their public support; the Democrats too little. The Republicans would like to consolidate their gains and become the majority party, not simply in terms of seats but in terms of public support, and drive the Democrats into a position of permanent minority status.

Because of the malapportionment of power, the only leverage that the Democrats have to represent the approximately 48 percent of the country that more or less supports them is their power to block legislation and appointments in the Senate. The Republicans would like to kick away this last remaining prop of counterbalancing power and govern unconstrained, so that they henceforth have only to contend with and reconcile the different forces within their own party.

Getting rid of the filibuster is a key device for achieving this goal. Although the current fight is over judicial nominations, if the Republicans are successful, there will probably be considerable pressure to eliminate the filibuster in other areas so that the Republicans can govern with a freer hand on important issues like taxes, tort reform, and Social Security. If this remaining tool of opposition can be eliminated, the Republicans can proceed to promote their policy goals with far less resistance. E.J. Dionne puts the matter succinctly in a recent column:

Grover Norquist, the president of Americans for Tax Reform and a leading figure in both the DeLay and Bush political operations, chose more colorful post-election language to describe the future. "Once the minority of House and Senate are comfortable in their minority status, they will have no problem socializing with the Republicans," he told Richard Leiby of The Post. "Any farmer will tell you that certain animals run around and are unpleasant. But when they've been 'fixed,' then they are happy and sedate. They are contented and cheerful."

In fact, eliminating the filibuster is about consolidating Presidential power-- the power of President Bush as leader of the Republican Party-- as much as it is about Republican power, as this story in the Post suggests:

The president, who initiated the conflict by renominating judges whom Democrats had blocked during his first term and demanding new votes this year, is essentially guaranteeing a showdown that is as much about the power of the presidency as Democratic obstinacy, according to numerous government scholars. The result could be a more powerful White House, a weakened Congress and the possible erosion, if not end of, the most powerful tool available to the minority party, the filibuster, the scholars said.

"This is being done to . . . help a president achieve what he wants to achieve," said former representative Mickey Edwards (R-Okla.), now a scholar at the Aspen Institute. "It's a total disavowal of the basic framework of the system of government. It's much more efficient [for Bush], but our government was not designed to be efficient."
. . . .
Although Republicans say the rule change would apply only to votes on judges, Richard Pious, a professor of political science at Barnard College, said there would be nothing to prevent this Congress or future ones from applying the precedent to non-judicial matters such as tax cuts or restructuring government programs. "Once you get the procedural method through, then if you have 50 votes and a vice president presiding, I think you can do it," he said.

Norman Ornstein, a scholar at the American Enterprise Institute, agreed. "There is absolutely no doubt in my mind if they do this, sooner rather than later . . . we will head down the slippery slope, probably first for executive nominations and then legislation," he said. "It erodes the Senate as an institution, but also clearly makes Congress less significant."


The second goal behind ending the filibuster is to smooth the way for Bush to appoint very conservative judges to the U.S. Supreme Court as well as the lower federal courts. This is a method of constitutional change that Sanford Levinson and I have called "partisan entrenchment," in which a determined President stocks the life-tenured federal courts with ideological allies. Through this strategy (1) the President can alter the positive law of the Constitution by tipping the working majority on the Court in the direction of his ideological allies; (2) the President can assure a more friendly federal bench that will cooperate with and support his legislative and policy initiatives; and (3) the President can install his ideological allies in life tenured positions where they will continue to have influence long after the President has retired and his Party has lost power in the political branches.

The first goal-- reshaping constitutional law-- is particularly important. Most constitutional change occurs not through Article V but through Article III-- not by explicit amendment but through judicial interpretation. Stocking the courts with ideological allies allows a President to reshape constitutional doctrine in line with his beliefs or with those of important constituencies in his party.

Not all Presidents have adopted this strategy of partisan entrenchment, but Reagan, Bush I, and Bush II have. They have done so in part because the contemporary Republican Party is a social movement party-- that is, it is dominated by key religious and conservative social movements that want to reshape the country. They well understand that the judicial interpretations of the Constitution have been a key part of the liberal agenda, and now they wish to use the power of the courts to promote their own policy goals. What is equally important, they wish to enshrine their vision of what they regard as the correct interpretation of the Constitution into the future, because once key constitutional doctrines (like those which followed the New Deal) are put in place, they usually resist significant alteration for long periods of time. Put in terms of my colleague Bruce Ackerman's theory of constitutional change, movement Republicans seek a "constitutional moment" that will usher in a new regime of conservative constitutionalism that will shape and dominate constitutional thought for generations to come. Eliminating the judicial filibuster is a key step in making that dream a reality.


Comments:

Where to begin? First, as you casually omit, 3 of the 10 nominees that the Democrats blocked in the first Bush term were not re-nominated. The reason it has gotten so confrontational is because all 10 were qualified and had “majority support” (a highly technical democratic term that has recently lost favor with liberals). Why should the majority cede more nominees to the minority than the 3 candidates who’s nominations have already been scuttled?

Second, as I’m sure that you are aware, the vast majority (something like 170 out of 200) of the judicial nominees that have been approved are for District Court judgeships and as such have relatively little impact on the shaping of public policy and constitutional law.

You avoid the real issue: appellate nominees, because those numbers don’t sing the song that your ears want to hear. The fact is that President Bush has nominated 66 appellate court judges and only 35 of them have been approved - roughly 53%. That’s lower than any President since Harry Truman, and startlingly low for a president who has a majority in the Senate. (President Clinton got 86% of his appellate court nominees approved when the Democrats controlled the Senate in the 103rd Congress). Compare apples to apples: President Bush’s appellate court nominees are being blocked at a rate even worse than the left complained about under Clinton.

“the current situation represents a serious malapportionment of power. The Republicans have too much power given their public support; the Democrats too little.”

That certainly depends on how you define “too much power.” President Bush won 31 out of 50 states: 62%. Republicans control 55% of the senate seats - and rising after 2006. While the House is more closely divided, 51% Republican, to say that the Republicans are entitled to only 52% of the “power” in the country is not only not supported by the numbers, it also ignores the number of states that chose President Bush and the increased numbers in the Senate. You seem to purposefully understate the amount of Republican election success to make the country sound much more closely divided than it is.

As far as “control” over the judiciary, America has put a Republican in the White House for 16 of the last 24 years (20 of the last 28 after this term roughly - 70% of the time ), the courts contain a majority of Republican appointed judges (a distinction between conservative judges) because America keeps electing Republican Presidents. Why wouldn’t the judiciary have a majority of Republican appointed judges? (Though there are a few on the Supreme Court we would trade you for a couple of buckets of baseballs).

Also, holding the executive branch is a zero sum game. You aren’t “kind of” the President - you either are or you aren’t. As JFK said “winning an election by one vote is a mandate.” That’s a democratic republic (which, again isn’t particularly popular on the left these days since they don’t control any of it).

As far as your “entrenchment” argument, all of the presidents since Truman through GHW Bush got between 77% and 91% of there appellate and Supreme Court picks through. How can you possibly attribute “entrenchment” only to Reagan, Bush I, and Bush II. Why didn’t Truman, LBJ and Carter have “entrenchment” on their minds also? Upon what basis are one President’s appointments entrenchment when another’s aren’t other than the fact that you don’t personally like Republican appointees?
 

I was prepared to respond at length, but the previous poster beat me to all the punches. To argue that the Senate is malapportioned is to believe that Democrats deserve seats because they are good people and because, darn it, they like themselves.
 

You ignore the most basic fact in the filibuster fight -- it's the Democrats who have changed and, in my opinion, misused the filibuster.

Never before has a minority party single handedly used the filibuster to attack a group of judges (namely, conservative Circuit Court Nominees). The Dems used the filibuster and its threat to block 30% of Bush's during the last congress.
 

mjh21, in a surfeit of ignorance, asked rhetorically:

"How can you possibly attribute 'entrenchment' only to Reagan, Bush I, and Bush II. Why didn’t Truman, LBJ and Carter have 'entrenchment' on their minds also?"

Puh-fucking-lease. I've got two words for you: idealogues and lunatics. Truman, LBJ, and Carter (and Clinton) didn't nominate either to the Supreme Court, they nominated moderates. Reagan tried to give us Ginsburg and Bork and gave us Scalia, definite idealogues all. Bush I gave us Thomas, full-blown idealogue and borderline lunatic (natural law, anyone?). Bush II skipped the idealogue part and has gone straight to lunatics like Priscilla Ownes.

Entrenchment, my dear little friend, is what happens when you nominate the fringe to run a country that is basically moderate in nature.
 

Everett,

Typical liberal spewing. You have nothing to say, so you say it loudly, profanely, and angrily.
 

This comment has been removed by a blog administrator.
 

What's at stake in the nuclear option? . . . How about whether the people of Nebraska can adopt a constitutional amendment defining marriage as a union between a man and a woman.
 

The interesting aspect of the Republican campaign to remake the judiciary that they argue that they are doing only what the Democrats have done before which is false. The Democrats have never mounted a concerted campaign to put ideologues on the federal bench and the decisions that Republicans despise the most were generally authored by Republicans such as Warren, Brennan, and Blackmun. The Republicans are understandably worried about being "betrayed" by their own nominees (some of whom might have the integrity to uphold the law) which is why they are at the same time seeking to undermine judicial independence. Miguel
 

A few things.

What exactly does "qualified" mean? Since GWB is not nominating "qualified" liberals, it has to in some respect (given how judges are confirmed) be ideological. To deny this is specious, esp. given those in power clearly care about ideology, more so than their predecessors in various respects.

As to district judges. Half a point there. In fact, district judges are quite powerful in deciding the fates of the people in front of them -- unlike appeals judges, they act alone. Their rulings are often appealed, but their judgment is generally followed, and the appeals process takes years.

As to states won. Bush "won" Florida by around 600 votes the last time around. The "winner take all" system skewers things nicely, but this was not addressed by the rebuttal. Unclear why.

Finally, as addressed by the original post, electoral results are not always perfect windows into the electorate. Choices based on strong opinions on certain issues (e.g., the war) result in appointees that the population at large is much less supportive of.

The fact that presidents just don't cut taxes or fight wars against Saddam (etc.) but choose strongly ideological administrators and judges is rarely on the minds of many voters. This is unfortunate though various checks are in place to temper the problem.

Checks less useful these days with a single party gov't with little sense of restraint, thus the truth of the piece.
 

Joe,

Your argument that the fact that a President will "choose strongly ideological administrators and judges is rarely on the minds of many voters" is just simply unsupportable condensation that voters aren't sophisticated enough to REALLY know what their voting for - "the voters know not that a Republican President will appoint, gulp, Republicans". Another Karl Rove mind-control trick uncovered by the left! Great reporting.

No, I'm sure it never occurs to people who vote Republican that the President will appoint like minded people to his administration and the courts. After all the appointment of judges was never mentioned in the presidential campaign. Right?

"The winner take all system skewers things nicely"

Skewers? Now Democrats are not only against the electoral college but also the popular vote!? Why don't you just come out and say it: Elections are sooo unfashionable and inconvenient unless Democrats win them.

"electoral results are not always perfect windows into the electorate. "

If only those damned voters would vote the way they REALLY feel! I guess you believe that to get a sense of how the electorate REALLY feels we should consult only the op-ed page of the NYT or limit the elections only to exit poll results.

In one short post you have come very close to scientifically proving that there is no argument so intellectually vapid that a liberal won't trot it out to explain that they aren't REALLY the minority party.
 

The statement that voting is skewered to single issues and so forth is actually shown in various pol sci research. It is not a lib/conservative thing either.

As the Bush voters per se, actually the rhetoric put forth at election time is moderate, though his actual actions belie the rhetoric. But, I'm not saying this is unique to one party, as you seem to imply.

I'm unclear about the sarcasm in respect to my "skewers" comment. Simply put, 50% + one person (in theory) can lead to the win of the state of Calfornia. This does not mean 100% of Calfornians support the winner, talk of 'mandate' and so forth. Again, this is not a party thing per se. Some other year, Reps might be negatively affected.

Point #1 basically answers your final response, which again mixes more partisan rhetoric than clear analysis. One need not read the NYT to understand that voters might support a candidate for various reasons, while not agreeing with all his or her views.

For instance, many voted for Tony Blair, but opposed his stance on the war. Just because Blair won does not mean all the things he believes was accepted by the electorate.

Such is the case in the States too and our system respects minority views even more than a parliamentary system ... even though our current situation is starting to feel like one too.
 

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mjh21.... Everett,

Typical liberal spewing. You have nothing to say, so you say it loudly, profanely, and angrily.


You would be the resident troll?

How does one "say it loudly" in a text based environment? Please don't tell me all caps. He did use one instance of profanity. How does that cancel out the rest of his statement?

My guess is that Mr. Balkin stopped responding to you long ago.

mjh21... Your argument that the fact that a President will "choose strongly ideological administrators and judges is rarely on the minds of many voters" is just simply unsupportable condensation that voters aren't sophisticated enough to REALLY know what their voting for - "the voters know not that a Republican President will appoint, gulp, Republicans". Another Karl Rove mind-control trick uncovered by the left! Great reporting.

One wonders what line of work you are in. Let me guess: An attorney, and not a very good one. Sadly, many voters don't have a clue. You are fairly well educated (not that legal training is a good education) and are a good example of cluelessness.

mjh21.... If only those damned voters would vote the way they REALLY feel! I guess you believe that to get a sense of how the electorate REALLY feels we should consult only the op-ed page of the NYT or limit the elections only to exit poll results.

In one short post you have come very close to scientifically proving that there is no argument so intellectually vapid that a liberal won't trot it out to explain that they aren't REALLY the minority party.


Now you are just becoming tiresome, over obvious and cliched.
 

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