What is at stake in the nuclear option?

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.