Nuclear Option? Beware the Fallout! (Update: Response to Critics)
By The Horserace Blogger Posted in Republicans — Comments (83) / Email this page » / Leave a comment »
While feverishly studying for his qualifying exam in American politics, administered Wednesday, the Horse Race Blogger watched in horror during the month of May as leaders on both the Republican and Democratic side played a game of nuclear brinkmanship. Too busy trying to understand the arcane theories of political psychologists, I simply lacked the time to sit down and develop some thoughts on the showdown over judges.
I’d like now to take the time to share my thoughts on the matter with you. I recognize that the chances are very high that you, the reader, were disappointed that the Senate did not engage in the nuclear option -- and that, therefore, I have an uphill battle here. But, as a conservative in academia, I’m used to this sort of thing. Given that the nuclear option is “still on the table,” I believe that my comments are not too terribly outdated. Personally, I believe that all of this will be coming back with the next vacancy in the Supreme Court, and so it might be a good idea to state my opinions now, without that context muddying the waters.
What I will argue in the space that follows is that the nuclear option would have seriously damaged the Senate, leaving it to fester on a bad path for a very long time. In other words, the Senate as it exists today, and indeed as it has existed for over 200 years, would have been damaged in a way that I think most people failed to recognize. I will argue that the nuclear option would actually have destroyed the Senate as we have known it -- possibly for a very long time, possibly, even, forever
Also, check out the end for an addendum where I respond to those who have criticized this argument!
It is important to note at the outset several important personal opinions that I have. At the end of the day, I am pro-Senate before I am pro-Republican. I think the Senate is one of the most amazing political institutions created in world history. From the time of the Founding to today, it has usually been a decidedly august body, meant to impose reason and stability on what the authors of The Federalist Papers thought would be a wild and unruly House of Representatives. By and large, I think those fundamental intuitions have been born out by experience.
Furthermore, I am not really interested in who was right and who was wrong in last month’s debate. As far as I am concerned, both sides were wrong because they willing to risk the very foundations of the Senate itself for five appellate Court judges. I know that I have not yet demonstrated that point, i.e. that the “nuclear option” would have risked the Senate itself. I am just setting the stage here. You might think that the Democrats were wrong to oppose those judges, and I am in agreement. But in what follows I will add that the Republicans were wrong because they decided to oppose the Democrats in the first place, risking the Senate itself in the process. When I say “wrong” I mean it in two senses. On the one hand, they were stupid to do so. It would have personally hurt individual senators, all of them (except those with immediate presidential ambitions), in the long run. On the other hand, they were irresponsible. It would have damaged the Senate in the long run, and therefore diminished the Senate’s critically important role in American political life. No judicial appointment, not even a Supreme Court appointment, is worth the Senate.
In other words, I am willing to cede to the conservative every point in his bulleted list of arguments. Yes, the Democrats were acting hypocritically. Yes, the Democrats started it. Yes, the Democrats were invoking an unheard of prerogative in Senate history. Yes, the Democrats were thumbing their nose at the nominees of the first majority-elected President in sixteen years (not to mention the President who received more votes than any other in American history). But the Republican leadership was simply wrong to force a showdown, given the preferences of the Democrats. Frist and Reid, therefore, share the blame. Reid because he was acting extraordinarily and in a truly vulgar fashion. Frist because he knew, or should have known, what the consequences of responding to Reid would mean for the Senate as a body.
With these prefatory points out of the way, hopefully not in the way, let’s get started.
When I argue that the nuclear option would have seriously damaged the Senate, I am asserting that it would have seriously damaged the mechanisms that make the Senate work the way it does. To demonstrate this point, it is best to begin with a look at what makes the House of Representatives work.
What would happen if you put 435 completely different people with completely different interests into a room, locked the door, and demanded that they agree on something before they are allowed out? One of two things would happen. On the one hand hand, you would get no results and, in about seven days, 435 dead bodies. On the other hand, you would get results because the 435 people somehow agreed to develop a way to control the unruliness inherent to such a large and heterogeneous organization. The House of Representatives, of course, has chosen the latter path. They have developed at least two different institutional mechanisms that control the body. On the one hand, they have developed powerful committees. Committees are a good way to induce some kind of sensibility in the House. They divide policy into manageable bits, place a small number of people on the committee, and give them power to enforce their decisions on the body as a whole. Committees in the House have many powers to enforce their decisions. Most notable among these is what Kenneth Shepsle of Harvard University calls the “ex post veto.” House committee members tend to staff conference committees. Thus, if some House member adds an amendment to the bill on the floor, the committee can simply get rid of it in conference.
On the other hand, the House has developed powerful parties. This is actually a recent phenomenon. Parties in the House tended to be weak until roughly the 1970s. What happened then was that the liberal Democrats who were elected in the late fifties and early sixties finally rose to positions of power sufficient to enable the Democratic Party leadership to control the legislative agenda. They were able to do this in large part because the Democratic Party became more unified. The Republican Party finally became competitive in the South in the 1960s, and this yielded a Democratic Party that was more liberal (as the seats of conservative Democrats became, with retirements, the seats of conservative Republicans -- a process that continues today). Thus, there was less opposition to pursuing a liberal agenda within the Democratic Party. The Democrats empowered the party leadership by giving them greater control over committee appointments and greater control over what gets onto the legislative agenda. The Republican Party, always more homogenous in its preferences relative to the Democrats, since 1994 has been very similar. Republicans are generally conservative, they generally want their party to pursue conservative, nationally-oriented policies, and they have thus empowered the House leadership with the ability to get that job done. Tom Delay is a successful majority leader in part because he is good at navigating the byways of congressional life, but also because the House Republicans have given him the power to do so. The Republican Party in the House is able to determine, at the beginning of a session, what does and what does not get placed on the agenda. The party caucus makes committee assignments. The Speaker has the power to multiply refer bills, thus favoring committees that are more amenable to his, and the party’s, legislative interests.
Either solution yields a generally coherent direction to policy in the House (though, it is important to note, that the direction of policy will differ depending upon which institution is prominent; generally, the committee concept of control is what yields pork barrel policy. The party concept of control is what yields ideologically-oriented policy). What essentially happens in both scenarios is that certain House members are given more power than other House members. This enables the body to function and produce policy of a certain type. The above two theories seem like they are logically contradictory -- how can you empower committees to control the agenda and still empower party leaders to control committees? -- but in fact, the House today reflects a mixture of both theories. Erick Shickler has argued that House organization does not reflect one emphasis entirely -- committees or parties -- but rather a mixture because those who wish to change the rules usually lack the power to eliminate old rules. They can only add new rules. In the end, you get a hodgepodge.
Academics, of course, have developed theories along these lines, and they have tested them against the reality of congressional life. Here’s the funny thing. These theories tend to work very well in explaining different aspects of the House of Representatives, but none of them seem to apply to the Senate. This is not to say that the GOP never gets anything done in the Senate or that the Senate does not approve pork-barrel policies. It is to say that neither parties nor committees explain how the Senate is organized. In other words, the Senate lacks the kind of institutional mechanisms which help create control within the House. Senatorial committees do not have the power to control the agenda (this can be seen, for example, with the ease that Senators have in adding amendments to committee bills) and parties in the Senate are, and have always been, much weaker than in the House. A common complaint among conservatives is that the Senate is less conservative than the House. The reason for this really boils down to the fact that Senate leaders simply lack the ability to guide policy in a partisan direction that House leaders possess.
As I mentioned, these kinds of organizations empower certain members by taking rights away from other members. Tom Delay has more power in the House than, say, Melissa Hart (PA-04). In the Senate, however, no one senator really has more power than any other. They are all generally equal, which means that there is no organization that is creating control in the body by exchanging powers among members. How, then, does the Senate manage its affairs? How can it possibly get anything done? Can you ever really organize a group of 100 people without making somebody more powerful than somebody else?
Speaking technically here, what we are looking for is some kind of equilibrium within the Senate. Equilibrium basically is a technical term for stability -- it is very necessary in meetings of large people. You probably have been in situations, at work or school, where there is no equilibrium because there are just too many people there and nobody is in charge. Nothing gets done. Things that do get done often seem quite unpredictable. When academics discuss equilibria within legislative institutions -- they mean that which keeps voting coalitions from forming and reforming constantly, that which keeps the rules of the body stable over time, that which gives policy output a kind of constant character. Game theorists have proved that in an institution sufficiently large, with sufficiently heterogeneous members, and with a sufficiently large number of topics available, any policy output is possible. Literally. Unless there is some kind of institution that keeps things in control.
What keeps the Senate from spinning out of control, from shifting coalitions of leaders, shifting committee jurisdictions, assignments, etc.? What keeps it from devolving into a meeting place of a rabble? What is it that makes 109th Senate similar to the 9th Senate? Whatever this is -- this is the fount of the Senate’s equilibrium. The House “induces” equilibrium via certain structures/institutions -- parties, committees or both. This is why, among academics who study this concept, the House achieves a “structure-induced-equilibrium.” Chaos, in the most literal meaning of the word, is prevented because rights are exchanged among members via institutions, which in turn are empowered to create control.
But the Senate has no “structured-induced equilibrium” because it does not have the institutional structures to induce it. Why, then, is the Senate not chaotic?
To answer this, it is best to return to how the Founders viewed the House. In The Federalist Papers, Madison argued that he expected the House to be quite an unruly body. It was popularly elected, predicated directly upon population, and its members were expected to have very divergent interests and goals. Placing people of this nature into a body, you simply cannot expect them to get anything done so long as they are so different from one another -- unless you constrain them with some kind of organization. But Madison viewed the Senate much differently. He thought it would be a body composed of more deliberate, sensible members whose opinions on matters would be much more moderate (relative to the House). In other words, he envisioned a kind of broad uniformity of opinion in the Senate that could control the potential unruliness of the House.
Of course, much of Madison’s argument was predicated upon the fact that senators, at that time, were nominated by state legislatures. The 17th Amendment changed that, making senators directly elected by the people. But senators still maintain a kind of similarity in opinions. Not on policy, of course. But their opinions about what is in their personal interests -- which, I think we can all agree, are the prime concern of an overwhelming majority of politicians -- are very similar. At the end of the day, these similarities of interest get back to the Constitution itself. Consider the following.
The Senate is the body whose members have the constitutionally-granted authority to individually comment upon national affairs. They have the responsibility to advise and consent on executive and judicial nominations. Thus, individual senators are intimately involved in the nation’s international relations and the composition of the Court. In the House, members tend to become policy specialists. In the Senate, the opposite is true. The Constitution itself mandates that they be generalists -- that they concern themselves with matters that are greater than their states. In other words, thanks to the Constitution, members of the Senate do not want to be constricted by rules and regulations that limit their ability to comment on anything which they wish to comment upon.
The nature of senatorial elections reinforces this interest. House elections are usually low-information affairs. Most voters in most House races do not even know who the challenger is (if there even is one). Thus, incumbents can usually get reelected by bringing home the bacon to the constituents. You get a bridge built, you win the accolades of your voters, and you get reelected. Senate elections, on the other hand, tend to be characterized by higher levels of information within the voting public. Voters are more likely to know who a challenger is and they are more likely to vote for senators based upon national issues. Just ask Tom Daschle. Despite his ability to bring money into North Dakota, the state kicked him out of the Senate last year. Why? He thwarted Bush one too many times for that conservative state. This implies that, once again, senators will want to have the ability to talk about and influence any policy that comes on the floor. They are not going to want to leave something up to a powerful committee chairman, or an aggressive party leader when reelection is at stake.
Finally, the reverential status given to the Senate means that senators often look beyond the Senate -- to a prominent Cabinet post, to the vice-presidency or even to the presidency itself. Once again, this means that senators want the ability to do whatever they want to do. They do not want to be constrained by a committee or a party because they are looking forward to future successes in politics at a higher level, and they want to be free to place themselves in the best position possible.
All of this means that the Senate, unlike the House, is composed of members who have similar interests. Again, these interests are not policy interests. Rather, they are personal. They all agree that they want to have as much power as possible.
Here we are getting to the crux of the argument. If you place 100 people with similar interests in a room who do not have the same policy interests but who all have the same interests in terms of personal prestige and power, and these are very important to them, you can get some kind of result from them because they all agree on at least something. They all want to have as much power as possible. In other words, it is not some structure, like a committee or a party, that is preventing chaos and inducing an equilibrium. Rather, it is the similar preferences of senators. In other words, the Senate is a stable, manageable body, i.e. it has an equilibrium, that is induced by preferences. A preference-induced equilibrium.
How does this preference-induced equilibrium manifest itself? It is through the norm of deference. In other words, one senator agrees that he will defer to the powers of another senator provided that the other senator will agree to defer to his powers. This is an arrangement that enables everybody to have as much power as possible. Thus, in the long run, everybody in the Senate is better off -- as the scope of their personal power is as great as possible.
The idea behind this is what political scientists and economists call “the folk theorem.” Robert Axelrod of the University of Michigan has argued that it boils down to the concept of tit-for-tat. You cooperate with me today and I’ll cooperate with you tomorrow. We all experience everyday examples of tit-for-tat. I have a book that you want to borrow from me. Why do I lend it to you? Because I know that in the future you will lend me a book of yours if I need it. While I lose my book in the short-run, I am better off in the long run because I still keep my book most of the time and I get to borrow your book. You get the same deal. And we are both personally better off for cooperating. That’s tit-for-tat.
The same goes for the Senate. This is why individual senators are allowed to place informal holds on nominees without anybody piping up. The deal is that one senator lets another senator place that hold, even though the first might find it inconvenient, because he knows that when he wants to place a hold of his own, the other senator is not going to complain, even if the other one finds it inconvenient.
This is how the Senate works. Senators want to maximize their personal power. This is what they all have in common with one another -- from Rick Santorum to Ted Kennedy. They all want to have as much prestige, prerogative and power as possible. These similarities in preferences induce an equilibrium in the Senate -- and this equilibrium is the norm of deference. It has what has kept that body together basically since its formation.
The big trick with tit-for-tat is that it can work the opposite way. If one person refuses to assist me today, tomorrow, if I have an opportunity to refuse to assist him, the chances are that I will not help him. Why should I help him if it is inconvenient to me? He is not helping me, after all. So it can go in the Senate. If one senator gets in the way of the second’s power move, why should the second defer to the first? The second does not like what the first is doing (in this example) and, because the first is not helping the second, there is no reason for the second to help the first.
What is more, it can work in either direction potentially for all eternity. If you and I develop some kind of cooperative tit-for-tat relationship, then we can potentially continue to cooperate forever. So long as I benefit more from helping you, knowing that you will help me, I will want to cooperate forever. On the other hand, if we start punishing each other, we can continue to punish each other forever just as easily. I punish you, you punish me, I punish you, and so on...what is going to get us out of the cycle? Once you lose that norm of deference, you might never get it back. This is something else that Axelrod and other game theorists have found. Cooperative tit-for-tat can work very well sometimes -- but, once things go awry, you cannot reobtain the cooperative environment. Generally speaking, scholars have found that solutions derived from the “folk theorem” are susceptible to this kind of “path dependence” -- where cooperation or defection becomes the norm based upon what happens early on.
It is time to tie this explicitly into the showdown on judges. The Senate, as I have argued, works cooperatively on a tit-for-tat basis, which basically boils down to the norm of deference. But, as I have also argued, this norm is relatively fragile. Of course, in some situations, it can be more sturdy. For instance, if somebody chooses not to help you, you might still choose to help them for awhile, to see if they get their act together. Their cooperation might be very important to you, they might have made a mistake, they might have miscalculated, or something like that. So, modest deviations from the norm of deference frequently are not big problems. However, major deviations can destroy the norm, and destroy it for good.
This is why the showdown in the Senate was so dangerous to the body. The Democrats acted first by invoking the extraordinary filibuster. This was clearly and demonstrably outside the Senate’s existing norms of deference -- they do not, historically speaking, allow these sorts of things. Thus, this was an innovation, and an affront to the existing powers of senators (how can they maximize their prestige on judicial affairs if a minority is allowed to keep nominees from getting a vote?). Frist’s response was going to be to punish them in turn by removing that option from the table. What was Reid’s response going to be? A complete slowdown of the Senate, which basically means that the Democrats would completely cease to defer to anything that any Republican wanted. The Republicans would, of course, respond in kind. And thus, the nuclear option would have utterly obliterated the norm of deference that has characterized the Senate for more than two centuries. Furthermore, because the norm of deference is the motive force of the Senate as we know it, the nuclear option would have destroyed the Senate as we know it.
To see how this all plays out, it is best to look at things from a broader perspective. I actually think the Democrats started this in 1987 with the extraordinary treatment of Robert Bork. That was the first defection from the norm that guides Senate behavior. They followed this up with their extraordinary treatment of Clarence Thomas. Their second defection. The Republicans paid them back starting in 1995 when they started giving Clinton’s nominees a hard time -- they also expanded upon it by giving nominees to lower Courts a hard time. The Democrats returned the favor by doing the same to Bush nominees from 2001 to 2003. After 2003, they continued to defect by invoking the filibuster. In other words, the norm of deference has been under severe duress in the domain of judicial affairs for 18 years now. But, all this while, the norm has survived throughout the rest of the body. The “nuclear option” basically boiled down to spreading this kind of defection to the rest of the body’s affairs. The Republicans were promising to defect from the norm again by messing around with the rules themselves, in response to the defection of the Democrats. The Democrats, in response to this, were promising to defect from the norm throughout the rest of senatorial affairs. They were going to stop deferring to Republican senators everywhere. Republicans, obviously, would have done the same thing. This would have destroyed the norm of deference, which is what has given the Senate its equilibrium for over 200 years.
In place of the norm, the likely response would be the kind strict institutions which characterize the House. If common preferences are not what is structuring the body because deference is dead, then either institutions that restrict power must structure the body or the body must go unstructured, and devolve into chaos (which, as an empirical matter, never happens within institutions). The Senate, then, would come to look exactly like the House. Given the historical function that the Senate has served, a function which it could serve only because it has been different from the House, I would assert that this would be an extremely bad consequence for American government. We would lose this institution. The Senate is the Senate and not a version of the House because of the norms governing the body. Eliminating those norms means eliminating the Senate as we have known it.
This cycle of punishment also probably would have lasted for a very long time. Once the Democrats and the Republicans stop deferring to one another -- what is going to induce them to start up again? If you’re a Republican senator, and you know that your Democratic counterpart is not going to defer to you tomorrow, why would you defer to her today? The Democratic senator has the same logic. Unless something happens independent of the situation, nothing is going to change. Thus, we would not just lose the norm of deference for a month or two months while people get their act together -- because, once that norm is gone, it is irrational to get your act together. Why should you? The others will only punish you for your cooperation. Once people stop cooperating and start punishing one another, it is very hard to get them to break the cycle. It usually takes some outside event that changes the interests of both to make it in their interests to cooperate today regardless of whether the other side refuses to cooperate tomorrow. These events, as a practical matter, are rare. Thus, we would lose the Senate for the foreseeable future.
And for what? If Frist had a choice between shattering the norm of deference for the sake of saving the Union itself, I’d tell him to go for it. But he ain’t no Lincoln, and this ain’t 1861. He was willing to do all of this for five stinking appellate court judges. There are literally hundreds of such judges in America. How on Earth could five of them be worth the Senate? How could fifty of them be worth the Senate? How could the whole appellate system be worth the Senate? And I do not mean Republican control of the Senate, I mean the Senate itself, the Senate as we have known it all of our lives.
Again, if we are interested in dispensing quantities of blame, the Democrats, particularly Reid, get the balance of it. This is because they acted first. They chose to break the norm of deference of the Senate by invoking something that had never really been invoked before. And they threatened that, if the Republicans respond, they would wholly upend the Senate itself by defecting across the board. They should be ashamed of themselves. Is keeping Priscella Owen off the bench really worth the United States Senate? Believe you me, if I saw Harry Reid walking down the street, I’d cross to the other side.
Nevertheless, Frist still deserves some share of the blame here -- and there is a lot of blame to go around. Why? Because he chose to respond. Thus, to respond in this manner, even though the Democrats started it, was irresponsible. He knew that his response would be met in turn by an end of Senate tradition itself, and he was planning to respond, anyway. The best thing to have done, for himself and for the nation, was to simply let the Democrats have the judges and take it to the people in 2006. Destroying the Senate is just not worth it.
What really angers me about this situation is that I think Frist was acting in this way because it was in his personal interests to do so. Like I said, every senator would be worse off because without deference, their power is greatly diminished. Most of them can be excused due to ignorance. It’s not their job to think about what makes the Senate tick. That’s the leadership’s job. That’s Frist’s job -- but Frist would have potentially been better off. He is leaving the Senate next year and running for the White House. This seems to me to have been a pretty blatant pander-attempt pointed toward 2008, to win over pro-life groups in advance of the Iowa Caucus.
I am willing to give Frist the benefit of the doubt and assume that he did not realize that his actions would benefit him but seriously damage the institution. Frist is no McCarthy -- I think that is self-evident. Nevertheless, the fact that the leader of the Senate did not realize what this would do to the institution he leads says a great deal about his political myopia. Ditto for Allen and Santorum, two other would-be presidents and staunch advocates of the nuclear option. And, I think for all of them, their personal ambitions clouded their judgment. Frankly, I am completely disgusted with the whole lot of them. They have a duty to advance the Republican agenda in the Senate. But they also have a duty to preserve and protect the Senate itself, and -- either through ignorance, ambition, or a little bit of both -- they were acting in dereliction of that duty. They are the leaders of that body. Part of that job is understanding what is in the interests of that body and doing what must be done to protect those interests. They have failed miserably in this regard. Reid and the other Democrats spearheading this were acting even worse, but that does not mean the Senate GOP leadership was not acting terribly. I expect better of them. And I am guessing you do, too.
For my part, I am greatly relieved that the “center held.” Those centrist senators, who usually are so feckless, managed to not only hold themselves together, they managed to hold the Senate itself together. I am no fan of John McCain -- but, at least for today, my hat is off to him.
While I will not be voting for McCain in 2008, I can tell you that I will also not be voting for Frist, Santorum or Allen, should any of them choose to run. They have failed to do the job which they currently have, and they have failed miserably. Why should I vote to promote them to the most powerful position in the world? As of May, the Horse Race Blogger has had a definite favorite in 2008. Go, Mitt, go!
ADDENDUM: RESPONSE TO CRITICS
I’d like to take a moment or two-hundred now to respond to critics, for they all seem to be responding along two general lines. The first argument, I find relatively uninteresting: the extent of Frist’s culpability. I think, given the way in which I defined “wrong” -- i.e. detrimental to the body as a whole and detrimental to every individual Senator’s interests -- I think it is clear from my argument that Frist acted wrongly. Whether he started it is, given this definition, irrelevant. I am not dispensing moral blame here. I do not mean wrong in the same way that a moral philosopher means the word. Rather, I mean it in the sense of Anthony Downs: wrong for the rational utility maximizer.
The other argument is much more interesting to me. It basically boils to several inter-related claims: (1) liberal judges are corrupting the hermeneutics of the Constitution and offending the moral sensibilities of millions of Americans, (2) these Americans cannot get better judges, i.e. judges that will interpret the Constitution in the right way; (3) (1) and (2) indicate a "cancer in the workings of democracy" (henceforth "judicial tyranny"); (4) the intended response of Frist was such that it was a remedy to (3); (5) he chose to respond now because this is all about the Supreme Court (not 1, but 2 judges).
I believe that all of these claims are either factually or logically flawed (or both), and I shall henceforth deploy my response.
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Argument 1: liberal judges are corrupting the hermeneutics of the Constitution and offending the moral sensibilities of millions of Americans.
There are several responses that I think nullify (1).
(a) There is no "true" hermeneutical interpretation of the Constitution.
Here I would draw on Karl Popper. In The Open Society and Its Enemies, Popper takes a break from blasting the philosophies of Plato, Marx and Hegel at the beginning of volume two to argue that an "essentialist" approach to understanding philosophical concepts is unintelligible. This is the Aristotelian way of understanding concepts. All it yields is an endless regress. Popper argues that "scientific" definitions of concepts move from right to left. The various phenomena that we observe occurring simultaneously are aggregated into a definition. Thus, the definition of a word is simply a heuristic. When we say, "dog," all we mean, scientifically, is the series of observed phenomena that seem to occur together. The definition does not exist independent of the phenomena -- it is just shorthand for the phenomena themselves.
On the other hand, when an Aristotelian says "dog," he means to get at the essence of a dog. Something like a "furry mammal" means something much different to him that it does to Popper. The difficulty here is that an Aristotelian wishes to get to the essence of what a dog is. What is a dog in itself? The answer is "a furry mammal" (or something to that effect). The problem here is that, if one demands essential knowledge, one cannot rest with that definition. It can only be essential if the essence of every defining term is already known. Thus, having given the definition of "dog," the Aristotelian must then provide the essential definition of "furry" and "mammal." The definition of "furry" might be "possessing hair." Again, one must give the essence of "possessing" and "hair." This will go on and on ad infinitum. In other words, the essentialist manner of identifying concepts leads to an infinite regress. The reason for this is that we simply lack the kind of epistemological capabilities that enable us to identify an essence. reductio ad absurdum.
Take this to the Constitution. How about the due process clause of the 14th Amendment: "(no) State shall deprive any person of life, liberty, or property, without due process of law." What does this mean in the Aristotelian sense? It requires one to define all of the key terms in the clause (and, incidentally, to identify what are the key terms...which itself would yield an infinite regress), and then to define those definitions, and then those definitions, and then those definitions, and so on. Before one writes this off as the silly prattlings of a philosopher, consider that it has been a subject of intense debate in this country over the centuries as to what constitutes a "person." In other words, we have debated stages of this regression. Today, we all think it is common-sensical, but that is not because those who disagreed with today's interpretation and were shown the light. But rather because it was decided by force in the context of democracy. A democratic government is a government that uses force, but it deems the force to be legitimate because of the way in which force is used is determined by the people's representatives. Democracy is a legitimate form of suppression -- and it was because of this suppression, done generations ago, that we today think that certain definitions are slam dunks.
This leads to Popper's second critique of essentialist methodology. It is predicated upon the epistemological faculty of intuition, which I think is extremely suspect. It opens the way to issues of false consciousness, which is an area of metaphysics which Christians have on common with the Gramscian variant of Marxism. When one intuits the definition of a word, one is basically delineating what it implies by use of one's intuitive faculty. However, suppose that somebody, say Kos, intuits another definition. What are we to do in this situation? Our definition, because it is intuited, seems self-evident to us. But so does Kos's definition to Kos. The response is either that Kos is suffering from false-consciousness, or that we are. This dilemma cannot be resolved because it is a metaphysical dilemma, one which basically uses the conclusion to argue the conclusion: i.e. Kos is wrong because he is wrong.
What, then, is the way around this? Many conservatives have resorted to the concept of "original intent." In other words, we should examine all of the original documents surrounding the Constitution, and use them to infer what the Constitution means. This suffers from problems on at least three lines: (a) One is using data that is not authoritative to delineate the meaning of authoritative data. This diminishes the value of the authoritative data. If one can only understand the Constitution by way of the Federalist Papers, for instance, then one is basically asserting that we need newspaper columns from the 1790s to understand our core document. This inherently and necessarily diminishes the document itself. For the Constitution was ratified, but the Federalist Papers were not. What, then, does that mean? Do the Federalist Papers have the force of law? (b) One is using the thoughts of people who lived in a different social, political and economic context. Madison had no concept of industrialism, let alone post-industrialism. Thus, one is actually arguing that the implications of the Madisonian interpretation necessarily implies what we today are arguing. But this suffers from the exact same problem that we are trying to resolve. Madison's definitions, in themselves, are not workable today because today is fundamentally different from the 1790s. Thus, we are intuiting the essence of the Madisonian concepts so as to bring them to today. But this is the exact problem that we were trying to resolve. We were looking to Madison's intuitions so as to avoid our messy hermeneutical debate, but this is subject to the same hermeneutical debate. (c) It confers upon Madison an epistemological faculty which we obviously lack. We are not able to divine the "true meaning" of the words within the Constitution because we simply do not have access to the essence of words. Thus, we are looking to Madison. But, how did Madison possess this faculty which we do not possess? The only way this seems sensible is to literally deify the Framers, to presume that when they saw things as being "self-evident," they actually had an ontologically complete vision of society. When Jefferson says, "We hold these truths to be self-evident, that all men are created equal" and entitled to "life, liberty, and the pursuit of happiness" the originalist assumes that he had an ontologically complete, essential knowledge of the concepts of "men," "equal," "life," "liberty," "pursuit" and "happiness" -- and that if only we investigate the supporting documents, we can gain access to that fuller meaning of the words that we ourselves cannot understand unanimously. This requires us to construct an argument which explains how they were able to intuit these definitions and we cannot -- i.e. godly powers. It also requires us to find a way around the problem of understanding these epistemologically superior men. If we presume that they were epistemologically superior, how can we understand what they have to say? It requires the same epistemological faculty. (This relates, I think, to the Calvinist's understanding of man's place vis-a-vis God, i.e. one of real inferiority that necessitates simple trust). Just as God cannot tell Moses who He is beside the fact that He is because God defines himself along lines that Moses cannot possibly conceive, these supposedly godly Framers could never explain to us the essence of a concept by use of words, for (as Popper has shown) words cannot indicate essences, and words are all we have to work with.
This is an argument which does not obliterate the potential of hermeneutics. It does, rather obliterate insofar as what we are trying to do with the Constitution. In other words, no amount of hermeneutical interpretation, however properly done, is ever going to get us to the essence of the concepts at debate, and therefore the necessary implications of those concepts for contemporary life. In other words, original intent is not incoherent. The Framers had an original intent in terms of the structure, organization of government, and we have access to that. But, we lack access to the essence of certain words within the Constitution which serve as the foundation of rights. Generally, I would say that this kind of "process" original intent is possible, and much more valuable, and the "substantive" original intent is not -- it falls under the heading of logically contradictory.
(b) If there is a true hermeneutical interpretation of the Constitution, we are working outside it (and quite happy about that fact).
In A Preface to Democratic Theory (1957), Robert Dahl argues that the Madisonian system of federalism is not workable and is inherently contradictory. He puts forth an argument which is extremely deductive, and almost rises to the status of logical proof. In conclusion, he argues that the way our government operates is not the way that the Framers envisioned it, and that this is why it works.
I am sympathetic to his argument, but will not put forth an explicit defense of it. I only use this as a way to introduce and specify the basic argument of this section: that we are, unquestionably, working outside the constitutional system today. And none of us are bothered by it. In fact, we've been working outside the constitutional system since 1797 -- insofar as we rely upon political parties. The Framers themselves were the ones who instituted parties, and this was in direct contradiction to their original opinions of parties. Everybody hated them. They thought they were mere factions, and therefore dangerous to the workings of republican democracy. They only differed in the extent of their hatred or what they thought they should do about them. Hamilton, for instance, hated them more than anybody else, and thought that all factions should be suppressed. Madison hated them, and simply thought that we should devise a system that utterly confounds them. Jefferson, as per usual, was more ambiguous about them, which helps explains why he was key in forming the first party.
Two relevant points here. First, by the time Jefferson rose to office, most everybody had changed their mind about parties. They came to view them as necessary to the functioning of government. Second, we ourselves are very much the same way. We tend to agree with E.E. Schattschneider, who wrote in Party Government (1944): the workings of our constitutional government are unimaginable without the political parties. They are an extra-systemic, extra-constitutional way to make the Constitution work. John Aldrich of Duke, in Why Parties? (1995), argues that parties solve three problems that are inherent to representative government: the social choice problem (i.e. parties prevent chaos in the House); the collective action dilemma (i.e. parties induce people to vote and they induce people in Congress to work toward a collective goal); the ambition dilemma (i.e. parties find a way to channel the energies and talents of the ambitious). In doing these things, they pervade every facet of American life. Thus, when you speak of the American system, you will necessarily need to reference the parties at some point in time. And the parties are not formally part of the American system -- and, worse for the original intent crowd, the original intent of the Framers was to make them so feckless as to be non-entities (and therefore non-threats).
This relates to the broader point of this section in the following way. If you could get to the original intent (which, I would maintain, you can -- not just to intuit the essence of normative concepts), at some point in time you will find yourself rejecting that original intent. Original intent will take you to the Federalist Papers, where Madison talks about the problems of factions, and the need to control them, to nullify them, and the fact that the Constitution does this. Look a little deeper, and you'll see that Madison thought parties were a faction. He therefore thought that parties needed to be controlled to the extent that they are nullified.
Thus, you find yourself in disagreement with the original intent. Can you pick and choose which parts of the original intent which you prefer? Of course, but you cannot rely upon original intent itself. You must, rather, rely upon your own intuitions about what is objectively right and objectively wrong. This was the problem that we could not solve, the problem that led us to original intent in the first place.
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Argument 2: These Americans cannot get better judges that will interpret the Constitution in the right way.
There are several responses that nullify (2);
(a) These "millions of Americans" do not constitute a majority of Americans.
On many of the social issues that are of concern to conservatives and to judges, the judges frequently have the majority of Americans on their side. On many of the areas where they do not, Americans might have a responses, but the response frequently boils down to a "non-opinion," i.e. indicative of the fact that they are not thinking about these matters. This is an important point. Frequently, on both the politically active left and the politically active right, the fact that the overwhelming majority is politically inactive is never taken into account. But it should be. Americans who are politically inactive are Americans who are simply not thinking about the things that concern the politically active. Thus, when they offer a response, it is a "non-opinion" that really (as John Zaller in The Nature and Origins of Mass Opinion, 1991, says) is really predicated upon the way the question is asked to the respondent or what the respondent has happened to hear recently. Speaking optimistically, we can only say that 25% of Americans actually operate within the confines of ideology. A greater number claim that they do, but their claims are contradicted by their opinions on matters -- because self-identifying liberals usually end up providing the questioner with opinions that range from liberal to moderate to conservative. They are not ideological, they just use an ideological vocabulary -- a big difference. Thus, if you are trying to gauge whether the public wants Priscella Owens as a judge or not, and you decide that the best way to determine that is to determine whether the public agrees with her on the issue of parental consent, and you decide that you will go out and ask the public about parental consent, you are not going to get a real opinion from a majority of Americans. What you will get is a response predicated upon either what the respondent has heard recently or how the question is worded. This implies that the results of the poll will vary over time independent of real changes in the nature of public opinion. The reason for this is that the public simply has not thought through all of the things that we, the politically active, spend large amounts of time thinking through.
Related to this, we are actually discussing here the proposed remedy. Presume for a minute that the public is sufficiently informed about these relatively obscure issues. What really matters for this debate is what we should do about it. Should we "upend" the Senate. Is this what a majority of Americans want? The majority of Americans do not even know what that means, let alone have opinions on the issue. Thus, again, it gets down to framing and recent data acquired. If Americans manage to agree that parental consent is such an important issue, and all these other issues are important, and they have real opinions on them, can we really presume that they support the remedy of destroying the Senate as we know it? Have they thought that through? Even here at Red State, most people do not seem to have realized what the "nuclear option" would really entail (hence the response to my piece which basically cedes my point as correct, original and insightful).
Generally, this debate cannot be couched in majoritarian language. To do so simply presumes too much of the American voter. This provides an important context for what we are really discussing. We are going to upend an institution to satisfy a tiny majority of the American public?! Again, speaking optimistically, only 25% of the public is ideological. If we presume for the sake of argument that this 25% is ideological in the same sense that we are, i.e. a detailed ideology which implies opinions on specific policies and specific remedies, then we are really talking about a debate between a tiny minority who has suggested a remedy that destroys an ancient institution. Personally, I find that unconscionable.
(b) Even if they did constitute a majority, invoking majoritarianism as a justification for bringing the judiciary under heel is decidedly in opposition to the "original intent" of the Framers.
This only matters insofar as people are trying to restore this original intent when it comes to substantive issues. What these people are really doing here is advocating the abolition of original intent in terms of process (again, logically intelligible) for the sake of saving it in terms of substance (again, logically unintelligible). To underscore this point, imagine, for a moment, that you had James Madison resurrected from the dead for a day to comment upon your situation. You'd say, "Mr. Madison, we have this big problem. All these judges are running around defying the will of the people. What should we do?" His responses, I am guessing, would be, "Well...you should stop being surprised and outraged!" "Why?" "Take a peek at Federalists #10 and #51." The whole point of the constitutional system was to systematically defy the will of the people. It was to keep power limited, and therefore to keep the people who most likely to gain access to those powers "within their proper place" (Madison's phrase from #51). The will of "the people" is checked again and again and again in our system. The only place where it is unchecked is in the House itself. Everywhere else it is checked in some way. The election of Senators. The nature of the Senate. Federalism. The life tenure of judges. The Electoral College. Check, check, check, check.
So, what are we discussing here? We are discussing eliminating the Senate as we know it to extend the principles of majoritarianism more explicitly to the Courts. So, this really amounts to a real opposition to the nature of our system itself. We are rejecting the nature of the Senate, part of the system, to embrace something which the system itself rejects. Let me ask, then, who is the real conservative on this issue? Ironically, it is John McCain. Bill Frist isn't. He was embracing an innovation (destruction of the Senate) as a means to achieve an innovation (extension of majoritarianism). And all for the sake of conserving the old system? Does that make any sense whatsoever?
(c) Given the nature of the American public, advancing majoritarianism is a dangerous proposition if one's objective is to preserve the conservative gains of the last 25 years.
Let's consider this issue with the insights of (2)-(b) explicitly. Suppose we do this. Suppose we destroy the Senate and it reemerges as ontologically similar to the House -- strong parties, quick passage of legislation, etc (the most likely result). The passing of legislation will speed up. Good for conservatives, right? Sure...for now, at least. But remember the average American voter is not ideological. Something goes seriously awry in Iraq. The Bush Administration suffers a big scandal in year seven of its administration, the American public is going to vote in the Democratic nominee, which will be chosen by the American left. And, because the issues of the day will not really break down on liberal/conservative lines (but rather upon "valence" issues like honest government and effective administration), they can basically choose any kind of liberal they want because his liberalism is not going to concern the electorate in that election. Where will the American right be, then? We'll be up a certain creek without a paddle, and we'll be kicking ourselves for making our system more majoritarian! This relates to my general, overall point, it is sheer foolishness to go around tinkering with our system, in almost any circumstances. You don't want majoritarianism because it can, and inevitably will, turn against you. Presuming that the American public thinks like you do, or even thinks in the same way that you do, is a huge mistake. They don't. Any study in the last 49 years on public opinion (since Lazarsfeld, Berelson and McPhee's Voting) will tell you that. And if you eliminate the checks on majoritarian power, they are going to vote in people who would spend every last minute of their time in office systematically decomposing everything that you have worked to compose. And, for the American public, such decomposition would be completely incidental to the reasons that they voted for that person in the first place.
Concluding Thoughts on (1) and (2): I am sympathetic to the concerns that conservatives have vis-a-vis the judiciary. I'll get more in depth as to what kind of purchase these concerns have on reality in the next section, but let me just say this. You are upset about the way the Courts are working. Granted and agreed. But, you have very specific concerns, but you are advocating broad systemic changes This is like doing brain surgery with a hacksaw. You really want a scalpel. I do not believe that you think the system itself is failing. Rather, you think that those within the system are misusing their powers. But you are advocating a change in the system. Is this really an efficient position? In other words, (a) could it not be that these problems could be resolved without recourse to systemic changes (which basically requires a thorough-going analysis of all the options on the table, which I have not seen) and (b) should we not be concerned about the side-effects of this systemic change, worrying that they would be very grave indeed? In other words, this seems to me to be both over-kill and kill. What concerns me here is that people are aggravated by the compromise of the moderates, which seems to solve the instant problem at hand without upending the system itself. This is why I think the position of those who have responded to me is ultimately contradictory. They are both advocating original intent (in terms of substance) and rejecting it (in terms of process). I'll revisit the issue of efficiency when I discuss (5).
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Argument 3: Arguments (1) and (2) indicate a "cancer in the workings of democracy" ("judicial tyranny")
Response: Since (3) is predicated upon (1) and (2), they no longer stand. However, I will use t his as an opportunity to discuss in substantive detail this issue of judicial tyranny.
I have already asserted, and I think demonstrated, that the substance of this judicial tyranny is not tyrannical insofar as it is neither contrary to the nature of our constitutional system nor contrary to the "will" (or, better put the non-will) of the public. When conservatives invoke this concept, they are really invoking a dissatisfaction with the product of the judiciary. It is the product of the judiciary I would like now to discuss. I will argue that conservatives are not angry about the substantive (i.e. policy) implications of the judiciary, but rather the symbolic implications. (Before I make this distinction, let me just say that I, too, am angered by the symbolic implications. I find many of them noxious. But, as I indicated before, the system is designed such that I am severely constrained in my ability to act on my feelings of nausea. And my support of the system inclines me to just suffer through them.)
When complaints against the judiciary are usually lodged by conservatives, they usually amount to an attack on judicial rulings themselves. They usually do not direct their ire to the effects of those rulings, which, in such condemnations, are assumed to be extant. This is, I think, an important blind spot. For, if those rulings have a negligible substantive effect, then they are merely symbolic. In other words, they are merely rulings which indicate what these judges think of the Constitution and the proper use of governmental operations symbolize, not what they actually do. Here is a simple example, there was a lot of aggravation in the aftermath of Justice Kennedy's invocation of international norms in his opinion on the death penalty. However, this invocation was not, nor did Justice Kennedy claim it to be, one of the causal determinants of his final judgment. It was simply dicta. The objection of conservative's was an objection to the use of that because of what it symbolizes -- the diminution of American sovereignty. The objection was not that this sovereignty was, because of this ruling, actually being diminished. Substantively speaking, we are neither more nor less sovereign as a result of that opinion by Justice Kennedy.
This presents a potential dilemma for analyzing the state of the judiciary. If one only looks at the products of judges, i.e. decisions, one cannot distinguish between what is ultimately substantive and what is ultimately and (I would add) merely symbolic. For it could very well be that judges are demanding substantive changes but, because these demands are not being enforced, the result is symbolism. In other words, in such a situation, judges are changing the laws, but the laws are still producing the same result.
This is a realm of inquiry that political scientists, and not constitutional scholars, are well-suited for investigation. Legal scholars are basically Madisonian philosophers. This is a valuable and beneficial and difficult profession, but it is a profession which lacks the methodological and theoretical tools to produce this kind of result. For what we basically have to do is try to draw causal inferences between changes in judicial policy and substantive changes in American life. The general consensus among scholars who have conducted this kind of study is that the Court lacks the ability to enact substantive changes. The most notable of such works is Gerald Rosenberg's The Hollow Hope: Can Courts Bring about Social Change? 1991. Rosenberg, on faculty here at my department, concludes that the answer to that question is almost always "no." I think the "hows" and "whys" of this conclusion are important, given the direction of the discussion that has occurred in response to my essay. Before I get into that, however, let me just make a point about Rosenberg. In his book, he unequivocally puts himself forward as a liberal of the 1960s tradition. The book stands as an objectively valid piece of social science, but his normative message is directed toward his fellow liberals: you have presumed that the Court can institute the changes which you desire; but they cannot; you must, rather look to the Congress and the Presidency. I bring this up because I am guessing that many of you have not read his book, and thus must rely upon my assertion that the book is credible and valid. His motivation behind the book, this admonition, speaks to his personal credibility beyond what I say. He personally cares very much for the advance of liberal social policy, and he concludes that the Courts are a dead-end. He is personally invested in his argument, in a way that actually enhances his credibility (for he is bucking a trend on his side of politics). That says something, I think.
Now, Rosenberg's book is wide-ranging. He posits a broad theory and spends the rest of the book examining its applicability for major areas of Court life. I think, for the sake of efficiency, I'll restate the relevant points of his book and then give you an example that he uses.
The question which Rosenberg was trying to answer is whether the Court is dynamic or if it is constrained. The constrained court view was basically the view of Hamilton, it is my preference, and I am guessing it is your preference, too. The idea is that the Court lacks powers sufficient to implement social change which the other branches (and, by extension, the people themselves) do not want. In other words, in this schema, the Court's power is usually limited to symbolic statements which themselves never materialize into social change (by, for instance, enlightening the public). The dynamic court is the one which makes the liberal salivate like Pavlov's Dog at the invocation of Justice Brennan. You know that view. It drives you nuts, right? Me too.
The way to arbitrate between these views is, as I have said, to look at if/when the Court was able to be a causal factor in major social change. Rosenberg argues that the constrained court view has the greater purchase on reality. Why? Because the Courts are limited: the nature of constitutional rights tend to be limited; the judiciary is not independent; the judiciary does not have the resources (like committees) to develop broad-ranging policies; and, most important, the judiciary lacks the power to execute its rulings (only the President has this power) or the power to pay for the executive (only Congress has this power). Rosenberg argues that the Court can only effect social change when three conditions are fulfilled: through gradual work (this relates to the limited nature of rights -- they must be expanded gradually over time to effect social change); when the Court can do so while remaining in the political mainstream (otherwise their rulings will be ignored -- so, for e.g., when another governmental agency files an amicus brief, the Court recognizes it has some broad-based support for the modification); and, most important of all, when there is widespread political and social support for the change.
Why does this last one matter? It is a common assumption among many that when the Court says go, somebody goes. But not so. Bureaucrats, interests groups or politicians might be strategically placed to thwart a Court ruling. They might have an incentive to so thwart a ruling (e.g. to avoid the ire of conservatives). This gets in the way, and the Court, usually, cannot respond to such roadblocks. Rosenberg delineates conditions for when there is broad-based support sufficient for compliance with a change.
1. When non-Court agents offer positive incentives to induce compliance.
2. When other actors impose costs to induce compliance.
3. When judicial decisions can be implemented by the market.
4. When the Court itself can provide political cover for people who are crucial to implemention but who want to implement the change.
This does not sound like a tyranny at all to me. Tyranny is the unconstrained exercise of power. From this list, it sounds like the Court is boxed-in when it comes to actually effecting social change. Rosenberg concludes that generally, when the Court lacks support from at least some citizens, or suffers from vociferous opposition from some citizens, it cannot effect social change.
As I mentioned, Rosenberg looks at a series of important judicial "revolutions" over the last century. This is what lends his theory so much credence. It is empirically robust, to say the least. I'm going to reference here Rosenberg's conclusions on the issue of civil rights in the 1950s, for that is usually taken as the premier example of judicial power. Rosenberg concludes the following, after extensive analysis of facts:
1. Before Congress and the executive branch acted, courts had virtually no direct effect on ending discrimination. It was only after the other branches acted that the changes demanded by Courts took hold. “In terms of judicial effects, then, Brown and its progeny stand for the proposition that courts are impotent to produce significant social reform.”
2. There was a “lack of political and cultural support for civil rights” that the Courts did not significantly affect. Again, it was only after the other branches became involved did public opinion change.
3. There is evidence that the Courts actually hardened resistance to civil rights progress. “Brown was used as a club by Southerners to fight any civil rights legislation as a ploy to force school desegregation on the South.”
4. It was non-Court factors -- growing civil rights, pressure from the 1930s, economic changes, the Cold War, population shifts, electoral concerns, the increase in mass communication -- created the pressure that led to civil rights. There was a current of history which swept up the Court.
Rosenberg finds that the exact same conclusion applies to a whole series of supposed monumental reforms. In the instance of abortion, here is what Rosenberg has to say: “Precedent-setting decisions in women’s rights have produced little because courts
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Nuclear Option? Beware the Fallout! (Update: Response to Critics) 83 Comments (0 topical, 83 editorial, 0 hidden) Post a comment »
First, a quibble... Despite Reid's pronouncements of shutting down the Senate if the nuclear option were exercised, it is not a certainty that he would have done so. If public opinion stayed mostly with Republicans in the aftermath of the end of the judicial filibuster, then I suspect that even a hard-head like Reid (and certainly his more politically realistic party colleagues) would decide that further obstructionism would only hurt the Democrats, not help them. Thus, the escalation would stop, everybody would have some breathing room, and the "norms of the Senate" could have seeped back in.
But assuming you are correct, what is the solution that Frist should have adopted? Should he have just ignored it, and allowed the Democrats unprecedented obstruction to proceed? I imagine that would have some noticable impact to the institutions of the Senate as well, as Republicans found themselves less and less able to govern, despite their majority status.
Your argument seems similar in principle to the (admittedly sound in its own context) theory that when a man with a gun says to empty the cash register, do it. Money is not worth a human life, etc. Safe, cautious approach, but it leaves you with an empty safe and a feeling of powerlessness. Moreover, the success of the robbery emboldens the criminal and makes him more likely to do it again.
What price would you assess to the Democrats for their judicial obstructionism, and how would you collect it?
Thanks for your objectively reasoned discussion on an issue that too many people were too short-sighted about.
Your first point raises a valid issue -- that is of what we might call a "credible threat." I think that the threat was credible, for three reasons:
(1) It is difficult to judge whom the public would blame. It seems to me the most likely response would be to blame everybody.
(2) It is further difficult to believe that blame of the Senate at large would be translated to the individual senator facing reelection. This has, historically, not been the case. Most members of Congress -- in both bodies -- make great hay out of running against the body.
(3) Most important, even if they wanted to start cooperating again, it is not necessarily true that they could. Remember...path dependence.
As for your second point, that is a relatively valid parallel. $$ < Life; 5 Judges < Senate Itself. I'm comfortable with that analogy. I would also go further and say 5 Judges < (Senate Itself + Feelings of Powerlessness). Personally, if I had to choose between keeping the Senate or making sure Frist feels good about himself, I choose the latter.
With all due respect Jay, you are completely and entirely wrong. (I want to borrow a line from "Point, Counterpoint" when Dan Ackroyd spoke to Jane Curtin, but I shall restrain myself.)
Jay, you say that Frist "was willing to do all of this for five stinking appellate court judges." What complete nonsense. Both the Democrats and Republicans in the Senate know full well that this is about the Supreme Court.
Instead of responding point-by-point to your very long, interesting, and well-written post, please allow me to pose a very brief hypothetical for you. It is not a completely realistic hypothetical, but it will get across my main objection to your thesis.
Suppose Rehnquist steps down. Bush nominates a replacement. 41 Senate Democrats huddle, and then announce this: "WE WILL ENDLESSLY FILIBUSTER ANYONE TO REPLACE WILLIAM REHNQUIST, IF THAT PERSON IS NOT FORMER SENATE MAJORITY LEADER GEORGE MITCHELL."
What would you do then, Jay? Argue that the nuclear option would damage the Senate?
...for your very kind words. I put a lot of time and thought into the column and I am very glad that you enjoyed it.
an argument that someone advances from within his sphere of considerable competence, but it seems to me that the argument yields several consequences which are of dubious value.
First, granted that the Democrats initiated this process, and that because they have embraced the strategy of achieving via the courts what they cannot win legislatively, what are the Republicans to do? If they refuse to respond in a manner that will enable them to overcome the contratraditional actions of the Democrats, this does not restore the deferential nature of the Senate: it allows the dominance of the party most inclined to violate it.
Second, what will follow from this on the level of actual policy is the steady leftward drift of the judiciary, resulting in the curtailment of the scope of democratic politics, particularly with regard to cultural concerns and the increasing integration of international "norms" into our system of jurisprudence. What is at issue here is the character of our nation, not merely the norms and values that we embody; this is a question of self-government and the durability of republican institutions. Perpetuation of the Democratic ratchet against attempts to rein in the excesses of the courts entails a leftward judicial, cultural, political and structural ratchet.
Third, this ratchet effect will place, with each passing year, additional obstacles in the path of any proposed reform, and not merely by means of the inertia of judicial deadweight that the Dems are able to move to the bench. As bad precedents ramify throughout our legal system, culture and politics, the difficulties attendant upon any attempts to reform the process will increase exponentially. Bad judging has constituencies, inside and outside of politics, and the prospect of conflict increases the longer those constituencies have the chance to organize, or be called into being by new and unprecedented rulings.
In short, deferral of the time of reckoning means either the de facto victory of the left on these issues or more substantial societal upheaval should the reckoning ever come. The Dems have already killed the traditions of the Senate. They effectively killed them in 86 or 87 when they established the new tradition of Borking. Either the Republicans move forward, crushing the obstructionism of the Dems on this point, along the way to the establishment of a new way of doing things in the Senate, or we lose. Indefinitely.
I'm not worried about Frist's feeling of powerlessness. What I think you are misweighing is the feeling of powerlessness of the 55 Republican Senators (or at least the 48 or 49 who consistently share my views on judges) and all the people, like me, who voted for them. That would have both structural consequences in the Senate and political consequences for the Republican Party as a whole. I mean, look at all the people on this blog who will no longer donate to the Senate Campaign Committee because it supports Chaffee and others. If The Democrats had held firm in their unprecedented obstructionism, what would have been the costs to the party?
Do you not think that Reid's obstructionism itself would have done long-term damage to the institutions of the Senate?
And I ask again, don't you think the Democrats should pay some price for their unprecedented obstructionism? How would you make them pay that price?
...I did indeed mention that this is about the Supreme Court. I even said that this was not worth a Supreme Court nominee.
I "appreciate" your "restraint," given the fact that I spent hours upon hours formulating an argument for your perusal. Given that, though, I think that I do deserve a point-by-point rebuttal before I am deemed "100% PERCENT WRONG." The all-caps is a nice, condescending touch. At any rate, I can assure you, were you to ever spend such time crafting such an argument, I would be genuinely restrained, should I disagree.
As for your hypothetical, I do not think that is even remotely possible. Nor is anything of its kind even remotely possible. The Democrats would simply not do that. Any obstruction they do would be couched very firmly within an argument about how the obstruction is relying upon the norms/traditions of the Senate. A minority of the latter could make no feasible argument. Any "defection" from the norm would likely be a modest one. That is how these things go. They start small and they escalate.
I would also add that another point about how things usually start off small. Nobody gets away with that kind of upending. You are forgetting your history. FDR tried to muck around with the Supreme Court in a manner similar to your hypothetical, and not only did he not get his way, he paid a price for it. His 2nd term was decidedly less successful than the first. Generally, any kind of defection from the norm would be such that it would not raise the ire of the public in a way that they could clearly blame one side or another. Your hypothetical is such an instance of this. Here, I appreciate your all-caps, for it indicates this point.
I would say that your hypothetical scenario is about as possible as Carey Grant rising from the dead to demand that there be an end to the norm of deference or he will smote all of us (and to prove his seriousness he takes out Olympia Snowe as a warning). Which is to say, safely in the realm of impossible. Thus, that you have chosen to pose this hypothetical to me rather than the Carey Grant alternative, indicates that you are engaging in a rhetorical trick rather than a logical rebuttal.
Anyway, let's cede, for the sake of argument, the possibility of this impossible scenario. I would maintain my argument. Yes. And I would instantly query why YOU are not on my side. Are the politics of the day SO IMPORTANT that they REQUIRE us to upend a 200 year old institution? Is one Court nominee really worth it?
I suppose it gets down to a value difference between us. I care more about the Senate than I do one Justice of the Supreme Court.
As for the Carey Grant alternative, I would say end deference. The Union is more important than the Senate.
...your emotional state is worth less to me than the Senate. And, as for $$ contributions, I admire your principles, but they are clearly not making much of a difference. The GOP is raising record cash, Chaffee aside. And, I am not sure what kind of structural consequences would occur to the Senate. How does that play out? It is not like we have elections like in Britain. Members run on their own, and frequently against Congress. And, anyway, suppose you are mad as hell at your GOP Senator. What are you going to do? Vote for the Democrat? Vote for a primary challenger that has no chance?
This leads me to my main point. It is interesting to me that you do not feel powerless anyway. Our system is one of the most complicated systems in the world, and it is designed to keep people from getting their way. Go check out Federalists #10 and #51 to see what James Madison had to say about people getting their way. The reason he liked big republics in the first place is because interest would confound interests. He was specifically concerned about limiting majority rule.
Indeed, it is difficult for me to believe that you think the Senate honestly represents the "will of the people" in the first place. There is 1 senator for every 321,100 North Dakotan. There is 1 senator for every 16,935,824 Californians. That is not democracy. That is not the "will of the people." THAT is the Connecticut Compromise. I mean, if you want to feel powerless, just look at Byron Dorgan in comparison to your senator.
As for the Democrats paying a price, I am not sure what you are implying here. Should we upend the Senate so as to simply extract revenge upon them? If we choose not to upend the Senate, a prudent (and conservative) choice, in my judgment, what do we do? Well, if you don't care about five appellate court judges, you do nothing, just like me. If you are really that worked up about Priscella Owens not getting a post, this is what you do: work your butt off to get the Democrats out of there. Is that a costly endeavor? Yes, absolutely. Should we get rid of the filibuster to cut down on your costs in this endeavor? I say no.
I will take issue with some of your thesis.
Finally, the reverential status given to the Senate means that senators often look beyond the Senate -- to a prominent Cabinet post, to the vice-presidency or even to the presidency itself.
This, I would contend, is much more a function of the name recognition that comes from being 1/100 versus 1/435 than any reverence accorded to the Senate as an institution. And at the same time I would contend that the same name recognition would be available to a senator were the Senate organized like the House.
Of course, much of Madison's argument was predicated upon the fact that senators, at that time, were nominated by state legislatures. The 17th Amendment changed that, making senators directly elected by the people.
I think you make too little of this fact. Pre-17th Amendment the Senate served as a brake by, for lack of a better phrase, the moneyed classes on the enthusiasms of the masses as expressed in the House. I don't believe that is the case any longer.
Other than these quibbles, I think your essay is well reasoned if, huge IF, I subscribe to the theory that the Senate has something unique about it that makes preserving Senate traditions a sine qua non of the institution. I don't find that an intellectually defensible position for any organization much less the Senate.
so let me get this straight. you're saying that, if 41 senators decide to endlessly filibuster any chief justice nominee who is not George Mitchell, then that would not upend a 200 year old institution?
Thank you for writing it. I enjoyed reading it.
A couple of points which aren't really rebuttals but more corrolary comments.
- I think that Reid was actually GUNNING for the nuclear option. You brought up FDR's judge packing debacle and I think it is relevant today. FDR lost a huge amount of political capital when he tried to pack the court. In the following mid-terms he campaigned in, IIRC, 36 races for Democrats. 35 of them lost. I think that Reid chose this tactic as a way to swing for the fences. Granted the nuclear option would have further eviscerated the Democrats short term but when the next SCOTUS seat came up the Democrats could stand on the high ground and say "The Republicans have chosen to turn out government into a one-party government. We can do nothing to prevent the nomination of Lunactic Right-Wing Judge Smith
- I think that what really gets most Conservatives in an uproar is that they feel that the Democrats are trying to take their authority, not that their actions are reasonable/unreasonable or that these judges deserve to get nominated. This is a short-sighted view of how our system should work.
In the end I think the Dems went all-in on this and hoped that the Republicans would call. While it may not have worked out for the Democrats they also know that the 06 elections are not favorable for them and that they need something to change the mindset of the voters before they happen. Getting guys like Santorum and Allen up for re-election and standing in the forefront on this, they likely hoped this could turn the tables.
I use the term
So, both leaders are at fault: Reid for violating the "norm of deference" by grossly distorting the filibuster. And Frist, for...
not being willing to let him get away with it?
proposing an action that would "CAUSE" the major expansion of the norm violation that is your actual worry -- because Reid and the Dems somehow don't have free will in their own counter-response?
You never actually tie Frist's proposed action -- modifying Senate rules -- to your thesis, that it damages the norm of deference. (If you did and I missed it, then I wonder why the myriad rules changes over the past 215 years didn't, in each and every case, immediately lead to a total stoppage of Senate business, and a total destruction of the norm of deference. Could it be that the "rules change" is not the proximate cause of your doomsday scenario, but rather the irrationality and radicality of the MoveOnLeft that controls the Dem Senate Caucus and Sen. Reid? But then, why blame Frist -- so you can pretend to be evenhanded and say "a pox on both their houses"?)
But you DO so tie Reid/Dem actions -- both the judicial filibuster, and the expansion of obstructionism to the rest of the Senate's business.
So, it seems you blame Reid for Reid, and you blame Frist for Reid. Huh?
Of course, I speak as one with very little respect for either "institution" -- I view both as elite little clubs full of narcissistic and corrupt tin gods -- so I don't really care about their precious deference. Hell, a little less cooperation between Senators would maintain my freedoms better (yes, I'm talking about Sen. McCain and his BCFR) than all the vaunted chumminess between Honorable Colleagues. What IS important to me is reining in the 9 robed masters by replacing some of THEM with originalists, instead of Reid's preferred candidates.
And yes, HRB, the Dems ARE doing something very similar to the all-caps hypothetical above, or haven't you been listening to Kennedy? The Dems have been proposing little committees to send a slate of candidates to the Prez [me: a slate of one, perhaps?]. In recent interviews they've been proactively naming names: "If he nominates X, that would be 'extraordinary'" (translation: filibuster blocked -- e.g. vetoed. Even before the nomination).
That's not "advice". That's usurpation.
You're worried about an assault on the unwritten rules governing interplay among Senators. I'm worried about a powergrab that fundamentally alters the nature of the balance between the three branches.
You tell me which is more important. (But if you say "senate comity trumps interbranch balances" I won't believe you.)
just doesn't cut it. Perhaps I am still incorrect, but I think that injuring or jeapordizing our base institution of government would be a big enough issue to cause some serious trouble.
I can remember Dovers was one of the only true RS conservatives that gave some credit to the possibility that this issue could come to insitutional preservation.
It's still playing out, so we still have to sese.
...my response:
First, you are, I think, misrepresenting the implications of letting the Democrats get their way on this. What would this imply? This would imply that the norm of deference remains within the sphere of most Senate activity, just as it is today. Tit-for-tat does not break down based upon one defection in institutions like the Senate. As I mentioned, it broke down in the judicial realm in 1987, and it has not yet spread to the general business of the body. A robust cooperative tit-for-tat regime can survive a few dings. It does not mean that (A) the dinging party will continue to ding or (B) the dinged party therefore cedes his right to respond. That's not how the game works.
I simplified the theory behind tit-for-tat for purposes of this format. Usually, the best response is a modified tit-for-tat, where both parties allow for the occassional defection of one another. I implied this when I mentioned allowing for rational mistakes, but perhaps I should have made it explicit that the Senate is actually a modified tit-for-tat situation (which is usually best in low-information environments where the intent behind actions is not always clear -- like the Senate). That is the utility-maximizing strategy in many instances. The reason for this is that it does not destroy the cooperative regime unless it becomes clear that the other side wishes to do so, anyway. They might score a few points on you, as you are evaluating their actions to divine their true intent, but, if in fact they do not intend to destroy the regime, then it is best to allow them a few defections because you will be better off allowing them those defections than you would by destroying the regime.
The point behind this is that allowing for one defection does not mean that you necessarily allow for all others. It is actually strategically sensible. Getting cooperation going again is often what is in all parties' interests (except, as I indicated, Frist's). So, it is best to allow for a few rational "mistakes." Sure you take a few dings in your utility today, but in the aggregate you are much better off. I actually think that this is what this boils down to. I honestly think that most Senate Democrats simply do not realize what this all implies. I'm not sure that Reid does, either. They would all be losers in the long run. Especially the Democrats. As I said, if deference falls to pieces, what will happen? Some kind of structure will be created -- the structure of strong parties. Everybody would be losers under that. Republican senators but especially Democratic senators. Much of this smells to me like one great big mistake in reasoning.
I should also add that the nuclear option is really not so much an instance of tit-for-tat gone the wrong direction. Again, this was simplifying due to the nature of the post. It is actually more akin to a "min-max" strategy. Min-max basically implies that not only will the other party defect, but they will go so far as to hurt themselves so as to hurt you as much as possible. This is what the Democrats are actually doing here, which indicates to me that they just do not realize what they are doing. Min-max is almost NEVER a smart strategy to play (the US, for instance, refused to play it when they refused to launch a first-strike on the USSR. The min-max move would have been to take 80% casualties stateside and induce 100% casualties in Russia). ESPECIALLY in an iterated game. I bring this up to indicate my opinion on the reasoning of the Democrats. It is very, very flawed. This indicates to me that they are not in fact trying to upend the Senate for the sake of doing so, and this is just a way to get to that point. They are, rather, just in over their depth here.
So, the real situation we have here is one of low information, wherein the other party does not accurately perceive the nature of the game. In such situations, modified tit-for-tat is the best move because it allows for mistakes in reasoning, which (again) is what I think is going on here.
Let me just add that I think there is a linguistic bias inherent to your side of the discussion. I do not say this to impugn your character, for you seem like a fair and reasonable and intelligent person. I am sure you do not mean it. What I am objecting to is your use of "the Dems" when it comes to the Senate. You are implying what I have argued explicitly does not exist within the Senate: strong parties. There is, then, a difficult thread to make to arguing "the Dems" for they certainly do not think or act with one mind. If we were talking about the House, I would allow for this, for I think it a fair characterization of that body. It is, of course, true, that all of the filibustering Senators are Democrats. It is also, however, true that very often those same Senators disobey their own party. This is a relevant point because you are bringing up the possibility of future defections. I would put it to you that, given the weakness of the parties in the Senate, simply because these Democrats are unified in defecting here does not imply that they will be unified in the future. It is a mischaracterization to imply that these Senators are going to systematically go stalking around talking the deference regime out piece-by-piece.
General ontological point: Senators are like cats. You don't herd cats. You can barely even stop them from doing what you don't want to do (my two little cats, Popper and Hayek, spent all last night trying to knock my lamp over in pursuit of a bug -- when I yelled at the former for her attempts, she hissed at me). You just thank the Lord when they do of their own volition what you wanted them to do anyway.
that the Democrats are going to somehow seize control eventhough they are the minority in both Houses and don't control the White House.
I see a lot of invective but very little substance in your post.
And please don't say you want "originalist" justices. You want activist justices that adhere to your political philosophy.
...you are a very perceptive person, for that was my key assumption in the essay. I took it for granted that the nature of the Senate is valuable.
My only response is that I think you are casting a very wide net on a period of time that defies such simple characterization. Your reference to the pre-17th Amendment Senate is really a reference to the Senate during the progressive era. During the ante-bellum era, it is true that the Senate served as a brake, but they also used their unique position to serve a constructive purpose. Here I am thinking of people like Daniel Webster and Henry Clay.
I would also say that the post-17th Senate shares much in common with the pre-17th Senate. It still serves as quite the brake. All sorts of things pass the House that get bottled up in the Senate. The Senate always slows things way, way down.
As for the reverential status issue, I do not actually think you are quibbling with me here. My argument was basically: Constitution induces preferences in senators. These preferences are a uniform desire to maximize their prestige. These preferences are best served by deference. The reverential status, I would say, flows generally from the nature of the Constitution. I did not make that point explicit in my column, and so I am not saying you misinterpreted me. I am just saying that I think we are in agreement here.
...what I said.
The basic point is this. Reid has threatened to upend the Senate. This seems to be a credible threat.
Thus, Frist has a choice:
(1) Get five judges and upend the Senate.
(2) Lose five judges and not upend the Senate.
What is good for the nation as a whole, what is good for individual senators on the left and the right is option (2). That Frist has not chosen option (2) means that he is worthy of criticism. For that is the responsible choice.
I also think you are missing the fact that my broader piece makes clear that I think the real villains here are the Democrats. I said I would not vote for Frist. I said I'd cross to the other side of the street if I saw Reid.
As for the rule change being a defection, I would say two things: (1) it objectively is a defection; modifying the filibuster without allowing for the possibility of a filibuster to block the modification is definitely a defection; (2) what really matters is what both parties consider to be a defection. The basic point is not whether the GOP's individual actions are more immoral or hypocritical than the Democrat's individual actions. What matters is the consequence that flows from the aggregation of those actions. Thus, even if we eliminate pont (1), we still have point (2), which is that the Democrats SEE this as a defection. This means thaat we know that Frist's action will yield a response from the Democrats that upends the Senate. Thus, Frist's aforementioned choice remains. That he was fulling planning on taking the first path makes him suitable for condemnation.
Personal Note: I am amazed at the number of people responding to my post who are not arguing against my point, but rather saying, "Who cares? Upend the Senate!" What is up with that? That's not conservative. That's not Burkean prudence. The general tenor of many here is that we should forget the Senate so we can really stick it to the Democrats. I find that mind-boggling. I really do.
You are right, my reference is much more directed towards the progressive era than the history of the Republic in general.
I like your application of game theory to understanding how the senate organizes and perhaps predicting the outcomes. Of course, it begs the question of why we who elect them would let them continue to play a game that works against our, the partisan voters, interests.
It seems to me that if I am right and the influence senators have is a function of the fact that there are only two per state and not based on a generic reverence for the institution that the ideal game for the majority is a system more like that in the House if the true purpose is maximizing influence.
...the Jane you ignorant you-know-what thing was also for emphasis?
...emphasizing my 100% wrongness is condescending. It is not characteristic of conversation among parties who respect one another.
...is influence maximization really the ultimate goal?
I personally like how slow and considered our system is. It is things like that, I think, which have meant that the United States, unlike the French, never rewrote the calendar, destroyed Christianity, and developed a holiday to the Supreme Goddess of Reason.
I am more of a Burkean conservative than I am anything else, and I appreciate how much our system facilitates that. Speeding things up can work both ways.
Okay, I'm sorry if I hurt your feelings or if I was impolite. I'll try not to be so blunt and smart-alecky.
However, in all sincerity, I would like you to really address this question, please:
You're saying that, if 41 senators decide to endlessly filibuster any chief justice nominee who is not George Mitchell, then that would not upend a 200 year old institution?
In my opinion, it would not just upend the Senate, but would also upend the Advice and Consent Clause of the Constitution. Moreover, there is no substantial difference between demanding George Mitchell in the flesh, and demanding someone whose views are compatible with Mitchell's. The latter is very much like what the Democrats were trying to do.
I will argue that the nuclear option would actually have destroyed the Senate as we have known it -- possibly for a very long time, possibly, even, forever
Yes, Jim, it would also have altered the very fabric of the spacetime continuum! Seriously, is there a bit of hysteria here?
ISTR it was Senator Robert K Byrd who pioneered what we now call the Nuclear Option decades ago, yet the Senate didn't meltdown then-- what happened? Not that this point matters either, really...
Furthermore, I am not really interested in who was right and who was wrong in last month's debate.
Oops! Well then, the rest of the article will be inherently flawed from my perspective. But I'll make one rebuttal, as I see one extreme problem with the whole argument, even ignoring the question of who is right:
The big trick with tit-for-tat is that it can work the opposite way.
Gong! If the positions be reversed, the Democrats would drop the bomb in a nanosecond. That is not a debatable point, AFAIC. Ergo, the whole edifice you build on the importance of this "deference" business falls down. The "tit-for-tat" thing might work for sprockets, widgets and wackadoos, but it ain't gonna work for judges.
The liberals can't win elections, they can't win referendums-- an activist and gameable judiciary is all they've got left, and it's worked out very well for them. You think Democrats would ever give away a single twig of the one super-branch of government they control because Republicans might be meanies in the future? Sorry, no.
Deference? Good grief, we had to wait all of ten minutes after this hugs-n-kisses deal before the D's were back to essentially filibustering Bolton. So much for the "tat" part.
Now that the bomb is here in regards judges, it's not going away, (violin-shriek-here), not for all eternity, it is only a question of which party uses it first and when.
And whoever uses it, I think the Senate will go on functioning, somehow, someway, despite possible cries of armageddon from the MSM and Senator Kennedy etc. Call me an optimist. And even if you're right, when my choice is between a nuked Senate and an even more activist judiciary, then I'll live with the fallout, thankyouverymuch.
If the positions be reversed, the Democrats would drop the bomb in a nanosecond. That is not a debatable point, AFAIC.
Then why didn't they when they controlled the Senate prior to Clinton's term?
Your post would have been much clearer if you had simply said "Democrats Bad/Republicans Good" you could have saved yourself some typing.
Byrd enacted the "nuclear option" four times (1977, 1979, 1980, and 1987) as majority leader, and threatened to do it many other times.
From the 1979 Congressional Record: ""Let The Senate Vote On Amendments, And Then Vote Up Or Down On The Resolution. ... If I Have To Be Forced Into A Corner To Try For A Majority
Vote, I Will [Change The Rules] Because I Am Going To Do My Duty As I See My Duty, Whether I Win Or Lose."
is not whether the traditions of deference and comity break down generally, but whether they will (or already have, at some level) broken down specifically with respect to the issue of judicial nominations. It is entirely possible for the usual Senate traditions to continue where all other legislative functions are concerned, and yet fail utterly, or nearly utterly, where the nominations are concerned. And this, I believe, is what is happening in slow motion. And for all of the reasons I articulated, and more, this is a very bad thing, as it calls into question the nature of the American experiment. If the Dems push too long and too hard in their present direction, and the improbable (a 60+ Republican majority) remains the improbable, there may well come a time when our society becomes much more contentious, and a significant minority of the population may wash their hands of the experiment which has come to do nothing more than make them feel the contempt and condescension of the cultural victors, who always seem to get their way, in the end, in the courts. In the long run, looking ahead a generation or two, let's say, by the time my son is starting his own family in 20-30 years, is the Senate worth the very nature of American government. Because that is the long-term nature of this dispute over the courts, their jurisdiction and the substance of their rulings. What price Senate tradition?
As an aside, I tend to approach the issue from a somewhat philosophical perspective: when a tradition dies, or is sufficiently weakened, those who attempt to restore or observe it eventually lose. Permanently.
As to the issue of alleged linguistic bias, I flatly deny it, because I believe that unifying a Senate caucus is like herding cats only with respect to those issues, like some spending, for example, which do not touch upon the values of the core of the party, the people who cut the checks and man the polls and the voting drives. And the core of the Democratic Party demands the cultural radicalism at all costs. Were it not so, you would see pro-life, anti-gay-"marriage" Dems at the convention. Bucking the party and the base on those issues might not cost a Senator his seat, but it would be infinitely more costly than bucking them on whether to spend $100 million or $150 million on some stupid pork-barrel project. It would cost him his ambitions within the Senate, and without. Read: the presidential nomination.
So the Senatorial Dems might be a herd of cats on most other issues, but they are nearly unified on either advancing the cultural agenda of the left, or in doing absolutely nothing to impede, or allow anyone else to impede, its realization, through legislation, or, in the present case, through the courts. Not because the party itself is strong, but because the composition of the Dem base is such that it in the self-interest of Dem Senators to render their obeisance on those issues. Hence, where these issues and appointments are concerned, they will have their way, for the most part, unless the Republicans, in your terms, risk the Senate.
Imagine an analogy, which undoubtedly, for someone with your background, has its flaws: suppose that all of the substantive-due-process cases that enshrined certain economic and business "rights" beloved of certain classes of conservatives were upheld in the same manner as the "rights" cases so beloved of the left - in the teeth of the logic of the Constitution and popular opinion, and by means of the sort of advise-and-consent chicanery the Dems now practice whenever they feel the prospect of the loss of control of some court. The republicans would have thrown into question the integrity of the Constitutional system, as well as the Senate, for partisan ends - ends not grounded in the fundamental law of the nation, ends left open to the democratic process. This would constitute no less a threat to the long-term health of the American system than the present if-the-people-don't-like-it-we'll-just-hand-it-to-the-judges-who-will-take-
it-away-from-the-people arrangement that now prevails culturally. What then?
let me know. But I interpreted this
This is how the Senate works. Senators want to maximize their personal power. This is what they all have in common with one another -- from Rick Santorum to Ted Kennedy. They all want to have as much prestige, prerogative and power as possible.
to mean that the maximization of influence was a goal.
And please don't say you want "originalist" justices. You want activist justices that adhere to your political philosophy.
In other words, you think that the only kind of judge is an activist judge, because that's the only kind your small mind can conceive of.
Quit ascribing your mindset to those you oppose. It leads only to heat and not to light.
What I mean by paying the price is that if there are no consequences to negative behavior, then it tends to be repeated. If Reid succeeded in the unprecedent breach of Senate traditions with the judicial filibusters and faced no negative consequences, why wouldn't he do it again and again in other circumstances?
You have proposed no solution to the problem of Democratic obstructionism other than "let the Democrats have their way". You are trivializing opposing arguments to your premise by reducing them to being about personal feelings (of Frist and now me), while inflating the importance of feelings of the Democrats who would have lost power in the nuclear option. Their losing this major political battle would, in your argument, have destroyed the Senate, changed its very foundations. Yet you suggest that the unprecedented breach of Senate traditions by the Democrats has no lasting consequence on that august body.
Now tell me, how many Republicans do I have to work my butt off to get elected to finally get the judges I want? I thought it was 50 or so. And under the OLD traditions of the Senate, that's all it took, because it was not accepted practice to filibuster judges. The Democrats changed the rules, so now apparently I need to help elect 60 Senators.
You admit the Democrats changed the rules. But you say that rule change doesn't have a lasting effect on the structure of the Senate, while if the Republicans were to change the rule back, that would have a very negative change.
Look, I'm not all that opposed to the compromise, if it works out as promised. But I think your argument is deeply flawed and amounts to "Republicans have to take whatever obstructionism the Democrats dish out." I'm all for us being the bigger people and showing more comity than is being shown to us. But I'm not for unilateral disarmament and appeasement. And I don't accept your argument that our bad behavior would have serious, serious consequences, while their bad behavior has none.
But one major factual error...
The Democrats acted first by invoking the extraordinary filibuster. This was clearly and demonstrably outside the Senate's existing norms of deference
This is demonstratably false. The Republicans acted first by unilaterally disarming the Democrats of all the standard pre-filibuster methods of stopping a nomination that the Republicans themselves had unabashedly used over and over again just a few years ago. They obliterated the norms of deference and left the Democrats with no option but to use the only tool left to them. And then the GOP tried to obliterate that norm of deference.
Bring back the exact same rules the GOP had available as a minority party a few short years ago and the filibuster is completely a non-issue. But the modern GOP doesn't believe in playing by uniform rules.
I have heard that at one time committeee assignments (and esp. cmte chair assignments) were done strictly by senority, but recently that has either changed or there were threats to change it if cmte members did not adhere to the party line.
Jay, what can you tell us on this subject? Is this also something that has or might permanently damage the Senate? Does it have a relationship to the filibuster battle?
P.S. I'm from MA. Romney is a decent governor. Weld was better.
you're out.
"So you're worried that the Democrats are going to somehow seize control eventhough they are the minority in both Houses and don't control the White House."
Seize control -- of the Executive Power of the President to nominate, and with the advice and consent of the Senate to appoint, judges? Yes. Of the govt itself in some sort of coup d'etat without actually winning some elections? No. Stop being silly.
"I see a lot of invective but very little substance in your post."
That's a fault of your eyesight, not my post.
"And please don't say you want "originalist" justices. You want activist justices that adhere to your political philosophy."
So now you're a mindreader? That's not what I mean. I don't want outcome-oriented judging. Fer instance: Bush v. Gore, 2000. You may disagree, but I believe Bush validly won a majority of electoral votes, including FL's, fair and square. So the outcome-oriented SCOTUS ruling agreed with my desire, but I think it was a bad decision. IMO, SCOFLA issued rank partisanship disguised as judgements, trampled on my elected legislators and executive officials, and generally behaved in a lawless manner, and deserved to be slapped down if not impeached.
By the FL Legislature. Not SCOTUS.
Instead, SCOTUS should have ruled that this was a separation of powers issue, and stayed the heck out. Then the fight would have been settled in the US House of Representatives as the Constitution mandates...it would have been messy, ugly, hateful, and vengeful -- but would have left a political decision to the political branches. Where it belongs.
Now, I beg of you and other readers not to go haring off on this court case even if you think my recap is totally wrong; I'm not trying to hijack the thread. All I'm trying to point out is that I, at least, am NOT looking for outcome-based judging.
I want a SCOTUS that reads the Constitution, not Le Monde or Der Speigel, when it issues rulings. That quotes the actual text of the Fifth Amendment, and doesn't blather on about emanations and penumbras. And that never, EVER, tries to say something like:
"Racial admissions preferences are constitutional now, but in 25 years they won't be."
As if the Founding Fathers ever dreamed of such a thing, way back in 1789, that the document they were creating included a provision written in invisible ink, that the definition of constitutionally protected university admissions policies would suddenly change in 2028.
Either it IS constitutional (say it, and then back it up with the Constitution, not sociological studies from Singer or Kinsley), or it ISN'T (then say THAT, and back it up -- with the Constitution, and not press releases from Judicial Watch).
Policy prescriptions ("we should do/allow/encourage thus and so, but maybe only for a limited time") are DIFFERENT than constitutional judgements. Policy is the realm of the POLITICAL branches, not the judiciary.
And right now, the judiciary is setting policy. It. Must. Stop. (On EITHER side. But IMNSHO, the left has done a far "better" job of medding in policy from the bench over the last 50 years than the right).
facile simplification of Frist's "choices". How about this, instead:
(1) Get five judges, return the Senate's nominations procecure to its traditional roots, thus ensuring that the Executive's soon-to-be-named SCOTUS nominees actually get a fair hearing.
and put the onus on Reid to upend the Senate if he's that crazy/uncaring-about-the-grand-Senate-institution.
(2) Lose 5 appellate judges today, 30 more for the rest of W's term, and all/any of W's SCOTUS nominees by granting Harry Reid unprecedented veto power and fundamentally changing the balance of power between Legislative and Executive branches forever.
but, dear GOD! at least you didn't ["force" Reid to] upend the Senate.
Under my definitions, it is not at ALL clear that (2) is the "responsible" choice.
"modifying the filibuster without allowing for the possibility of a filibuster to block the modification is definitely a defection"
But why is it so much worse if the Republican Majority does it now, than when the Democratic majority did EXACTLY the same thing four separate times over nine years back in the day? Because of Reid's threats?
But that's Reid's problem, not Frist's. And if threats are allowed to rule the day and bluffs are never called...well, you do the math. What's next? "If you bring up W's SocSec bill to the floor, we'll halt the entire Senate." "If you bring up tort reform/tax cuts/pick-liberal-boogeyman, we'll halt the entire Senate"
And by your argument, each and every time, if Frist DID place any of those items on the agenda, HE would be guilty of upending the Senate. Not Reid -- because his threats are "credible"?
Further, if Reid did nuke the Senate, your doom-and-gloom scenario misses the most important point: the Senate does not operate in a vacuum. Its equilibrium is punctuated every two years. Yet another round of obstructionist- (e.g. deference-norm-defection)- bashing election results ("Hey, Daschle, how's retirement?") might FINALLY begin to pound sense into (in your words) the true villians of this drama.
"Standing athwart history yelling STOP" does not hava a coda reading "unless you bluff me real good". The Republicans are responsible for their OWN actions -- not the Dems' response. Otherwise, you could as easily argue that it was the DEM's decision in 2001 (and later, 2003) to absolutely halt any and all appellate nominations by illicitly (corruptly?) gained majority action first, and then upon electoral rebuke, by unprecendented filibuster, which FORCED the republicans to change the rules -- so the rules change is directly the responsibility of Daschle and Reid, not Frist. But that'd be silly -- as is your attempt to shift blame by saying Frist's rules change would upend the Senate, when it would be Reid's halt to all cooperation that is the true definition of "upending".
When the the Senate change their rules to allow a simple majority for a judicial appointment?
Given the source that may be faint praise, but you have changed my mind.
In the 2004 YEAR-END REPORT ON THE FEDERAL JUDICIARY Rehnquist indicated way out of the current problem or at least part of the way. There is a need for more judges and more appellate circuits and more appellate judges. (section II)
Rehnquist in Section III goes to great lengths to deter the proposals to redefine jurisdictions or hold impeachments in response to specific judicial rulings. He received a fair amount of negative attention when this was released this past winter. He has not received, as much as I have noticed, attention at all for offering a counter-proposal: appointing more judges. Clearly he shows FDR's example of proposing to appoint six additional supreme court justices as an over-reaching, but taken with his proposal in Section II, the scheme of changing the character of the judiciary through the appointment process can be seen not as the reserved proposal to replace retiring overly leftist judges with rational judges (ooops a little editorializing by me there) but as a proposal to appoint judges in ever increasing numbers in order to both eventually change the character of the judiciary, and to immediately begin to dilute the baleful influence of the current membership. Hopefully there will be enough honest graft, in the persons of Democrat minions, so that the other side can be bought off to do their duty and allow the popular majority to appoint their own minions.
Once judicial powers are back in balance it should be possible to find reasons why honest men of nearly any political beliefs can serve on the courts of America.
The precedent set by Byrd in those 4 situations was to appeal the decision of the chair with a majority vote of Senators, where a larger number was previously required.
There is a lengthy law review article on the topic here:
http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf
...I am not sure what rule changes have been instituted in the Senate. My understanding is that they work pretty strictly on a seniority basis, but that the committee chairman is subject to a vote from the committee's party caucus. I am pretty sure that the majority leader does not have the power to remove committee chairs. I think this is confirmed by the Senators who chaired committees in the 108th Congress. Moderate GOP Senators, e.g. Olympia Snowe and John McCain, chair very powerful committees in the Senate. I think Snowe was chair of governmental relations and McCain was chair of science, commerce and transportation. Plus you have Lugar on Foreign Relations and Warner on Armed Services. You also have Stevens chairing Appropriations. They are all pretty moderate for Republicans. Well, Stevens is a pretty good conservative, I guess.
Senate committees are very different from House committees -- in a way in which they are weaker.
(1) Many committees in the Senate use a rotating chairmanship (e.g. Judiciary, Senate Select Comm. on Intelligence).
(2) Senators usually have an appointment to one of the major committees.
(3) Senate committees are less powerful because they lack the means to prevent changes to discharged bills on the floor. The House has closed/open rule possibilities, regulating amendments on the floor. The Senate does not.
(4) Subcommittees in the Senate are much less important than they are in the House because Senators are simply too busy to make use of the subcomms they chair. In the House, the subcommittee has been a big mechanism by which the parties have been able to exact control. In the 1970s, committee chairs lost the right to select subcommittee chairs.
...I would only that that, insofar as this goes back to 1987, the Democrats started it then.
...I guess I was being ambiguous. When I questioned whether "influence maximization," I did not mean it in regard to Senators. I meant it in regards to the way the system as a whole -- three branches, federalism, etc -- relates to voters. The idea here is that the Framers were intent on keeping the ability of a majority to influence government across the board.
Jay,
You and I have traded a number of emails regarding your article and I'm afraid I haven't been very eloquent in my replies.
I'm sure many who read this note will consider me simplistic and unlearned, but I do represent many in my party.
So, simply put I'm your average Republican foot soldier, I'm religious (Catholic) but not overly so. I'm a mildly social conservative, a strong fiscal conservative and a small government proponent.
My grandparents were emigrants to this country from Germany who never owned car, never owned a house. My father is a Korean War veteran who never went to college but work his way up to being the CEO of an American corporation. Neither my grandparents nor my father even voted anything but Democrat. We lived the American dream, we believe in the American dream.
I live in a wealthy coastal town in New Hampshire and work in Massachusetts. All that I believe in and all that I treasure is under attack on a daily basis, mostly from the judiciary. Two of my children attend public schools where you can't sing Christmas carols but have to study Islamic culture. Where there is no budget for gym but there is a scholar in residence program that brought in an African Lesbian Drummers group (true story). None of my children have even had a civics course; they can't name our Governor much less a Representative or Senator. The names of John Adams, Thomas Jefferson and Patrick Henry are never uttered in their school.
And most of us see the judiciary as the spearhead in implementing this destruction. We work hard, give our time and money and turn out to vote. And still we get this terrible result; we can't get decent judges confirmed. We're frustrated and we don't have much patience with the niceties of Senate tradition.
No I didn't go to Yale. No I don't have a PhD. No I've never read any of the documents or books you told me to read. No I don't work in politics.
I have started and run a business. I've raised three children. I've had money and I've been broke. I've hired 100's of people and I've had to layoff dozens in a bad economy with no jobs in sight. I was supposed to be in the World Trade Center on September 13, 2001 at the Waters conference, all of the people I would have met with are dead. I lived with the pain of the real world.
No I'm not learned. No I'm not a political insider. No I'm probably not as smart as most of you. But I'm your Republican voter and I'm angry and I'm tired. And I don't want to hear any more about the traditions of the Senate. I'd like to hear how my elected officials are addressing my beliefs and my concerns.
So belittle me. So tell me to read (Federalist #51) or (Federalist #78); or McKelvey (1975). In return I'd ask you to go to Penn Station NY and take the subway (A or C train) to Brooklyn and get off at Jay Street. Go to any Chinese's, Jamaican or Porto Rican Restaurant and report to me what you learn.
So as one simpleton to the educated and elite overlords this is my response.
So, now I must be relegated to FreeRebublic or some other such forum, oh well.
Paul Buntrock
Pbuntrock@aol.com
I have to say that Jay's foray back into blogging here has not impressed me much. He hasn't reacted well to criticism and he hasn't addressed the practical, straight-forward political concerns which you and others in this thread have voiced.
I have a very simple question for him. What should Frist and the Senate Republicans have done? What would have gotten our judges confirmed? That's why I voted for a Republican Senator this last election, and one of several reasons I so strongly supported Preisdent Bush. With the Democrats being unprecedentedly obstructionist, what is your solution to the political problem, Jay? Besides just taking it on the chin, that is.
Do you have anything of substance to say? Any substantive rebuttal whatsoever?
Warning: that will require not only typing but also critical thinking. Start with a hearty breakfast.
That was a good post.
I am a simpleton myself.
Tired of the BS and angry at the wimps.
I want nothing more or nothing less than an up or down vote on all qualified nominees that pass out of the judiciary committee.
If the dems can't do that much for our country, to he$$ with Senate traditions, I say nuke 'em til they glow.
taking charge of the situation instead of acting like a wet rag through all this? I'm glad to see Horse Race give the indepth perspective he has. I was so totally angry at politics until I read his comment. Then I relaxed and decided there are facets I'm not privy to know about. It'll be what it'll be. I can't carry the whole political burden on my shoulders. I can, however, vote.
Also, I keep hearing everyone talking about the supposed filibuster. Nobody has done any real filibustering yet. You, know, the kind that they have to be on the floor until they wear out. Mostly it's obstructionism now. Why don't the Reps expect to force a real one. They cave even before it's played out and then go home.
I still think you're 100% wrong, and I don't think it's rude for me to say so. If I said you were half right, would you be offended by that too? Of course not.
It's unfortunate that you apparently will not condescend to answer a simple question.
Paul, you write:
None of my children have even had a civics course; they can't name our Governor much less a Representative or Senator. The names of John Adams, Thomas Jefferson and Patrick Henry are never uttered in their school.
... then criticize Jay when he invokes Madison in support of his argument.
I'm sensitive to your defense of the "simple" - and I would actually agree with the proposition that Jay has hyper-academicized this. (My own view is that Reid would have backed down, based on a very clear reading of the very self-interest that Jay cites as a primary motivator. See also Daschle.) And I also agree with the other posters that bad behavior like this (from the Democrats) can't go unpunished, or it will certainly be repeated again and again (which we are in fact already seeing).
But let's not cede the academy to the liberals just yet. I'm generally a big fan of analysis like this, and don't want to contribute to the perception that conservatives are, in your words, uneducated hicks.
Really enjoyed reading that.
The core issue is about Judical appointments. Since the rulings they hand out reflect their beliefs, you want conservative judges. Democrats want liberal judges. Point is, judges are supposed to be fair and impartial. Isn't it obvious that they would be so only if they were unbiased in their beliefs? And who better to filter out biased judges than unbiased or 'moderate' senators - who want jucicial nominees who are acceptable, if not to the liking of both sides?
The center held, yes. But this give and take won't work for a crucial appointment. However, if the nominee is good enough, he/she should be able to get the necessary votes - on merit. All the President has to do, to preserve the Senate, is to search for a candidate who is good enough - with unbiased, spotless reputation. Is that so difficult to do - find a candidate who gets the vote on merit, instead of party affiliation??
Every judge, every lawyer, comes to the post with certain preconceived ideas -- we don't make humans out of whole cloth to wear black robes. The relevant question isn't "are you biased or not on some issue or another," which would be ridiculous on a number of levels.
The reason I bristled at your activist comment is because, IMO, activist is simply code word for "political bias I don't adhere to".
Originalists are politically neutral. Democrats and Republicans could just as easily pick them.
But the discussion is never about literalism interpretation and relative interpretation. If it was you would likely have considered Janice Rogers Brown unfit and certanly would have questioned Priscilla Owen.
Why is David Souter so disliked by the Right? Because they expected a idealogu activist and got a moderate mostly strict constructionist.
Interesting post and interesting perspective.
I enjoyed reading Jay's comments and, as always, learned something from the post. I'm glad he's posting again and, if anything, would like to hear from him more often.
In terms of the issue of speaking down to you, I've been on both sides. I remember once, shortly after I left grad school I used the word "environment" while talking to a lower class guy. His response was something like: "Oh 'environment,' big words here, huh?" OTOH I remember once talking to a new acquaintance who mentioned Kant, Hegel and about two or three other philosophers within 30 minutes. And I felt like the poor guy who didn't know what "environment " meant. As it turned out we were able to talk it out and we speak once in a while and he never mentioned a philosopher again.
But getting back to the content. I've enjoyed watching the flow of the comments and I'm wondering if there's a possible synthesis of the two points of view.
The best understanding I can come up with for what's going on might involve a family analogy. Let's say that you are the less powerful of two siblings, maybe you are a 12 year old boy and you have a 14 year old brother. The parents have left the two of you alone with some instructions for how something will be done, let's say they left $20 for pizza for dinner. Now let's say the 14 year old decides to order takeout Chinese food, which you hate and he does so. Now what do you do? You could take a baseball bat and threaten him with it, or even beat him senseless. You could even kill him. If you do this before he pays for the Chinese food you have a short term solution but a long term problem.
I think the best solution is to make do with what you have and when the parents come home appeal to their sense of fairness.
BTW, I think the analogy also works if you start with equal power, like identical twins.
I think this is where we are with the Dems. They've done something which is blatantly unfair. Maybe we should have screamed and yelled back when they blocked Bork. But we didn't, at least not enough. So it's probably better to do that now. There are a lot of intelligent moderates out there and we will win big with them if we do so.
OTOH, I think Jay should at least say more about what to do in the short term. Paul's concern are real and well expressed. I don't blame him for having less than a 200 year perspective.
First off I am of the opinion that this was really a win for the Republicans which I realize goes against conventional wisdom.
Then again I think that had the Republicans invoked the Nuclear Option they would have taken a tremendous hit.
Right now the Republicans should continue on and put every nominee up for a vote. The Democrats won't be able to reasonably block them. So that solves the current judicial appointments. Fillibustering a appellate or circuit court justice is one thing. Tryng to filibuster a SCOTUS nominee isn't feasible unless the justice is completely out in Left Field.
When it is time to choose a SCOTUS justice Bush needs to pick a sound choice. Whether there was a fillibuster option or not he was not going to be able to appoint an overtly anti-choice justice. Politically it isn't an option. However he could pick a Conservative justice and will get that justice to go through.
There is a sense by some Republicans that since they are the majority they should get to do whatever they want. That is simply not how our country operates or how it was supposed to operate. Our system is DESIGNED to give protections to the minority. The majority can push throught their agenda but they can't treat the minority as irrelevant. IMO, that is what the GOP was doing prior to the Deal.
And most of us see the judiciary as the spearhead in implementing this destruction. We work hard, give our time and money and turn out to vote. And still we get this terrible result; we can't get decent judges confirmed. We're frustrated and we don't have much patience with the niceties of Senate tradition.
Nobody has much patience with the tradition of the Senate when he is in the majority. And nobody of any sense thinks the judiciary as it is is a good thing.
The point about tradition is not that it is traditional or that it is supported historically or that it is supported by esoteric academic modellng; these things are merely used to support the opinion. Whether you want to follow along such reasons is up to you, and you may discount entire sections of the support for the position.
It really isn't fair to say that you refuse to think about what someone has said because they refer to too many arguments that may or may not be valid. At the center of the argument is the idea that even though the Senate is not working as quickly as we would like it to do, there is more harm in moving quickly now because once that is done, there is no longer anything slowing down the countermovement that one day will come.
The mess didn't happen in 1988 and it could not be fixed by President Bush in 2005 even with a rubber-stamp Senate, let alone an entirely GOP Senate or even a majority GOP Senate.
Our judiciary has need of change but if the Senate changes too much then we are left with pure party rule. That may happen anyway if the Democrats obstructe too much or if they win back the majority too quickly (while they are still in denial about the changing opinions of the people).
Your children, who haven't heard the names of any patriot or philospher who knows right from wrong (let alone who knows of right and wrong) will be voting citizens someday. Given their abysmal education, no matter how well they test, do you trust that they will elect a Congress that will respect your rights? or is there a value to all of us in providing some institutional resistance that will allow them to educate themselves in reality (in the lower house or in business) before they sieze entirely the levers of government?
Paul,
Just curious but why do you feel that the judiciary is the spearhead of the destruction of our way of life/society?
Do you have specific judges you oppose or specific cases?
I'm not really sure what your comment regarding ethnic restaurants in Brooklyn. What do you expect us to learn?
Just a few of the recent items regarding the activist judiciary and how I believe they are ruining my country and my state.
I live in New Hampshire we have neither an income tax nor a sales tax. It was a great system; taxes were collected at a local level and spent at a local level. It was the ultimate freedom of choice, you picked the town with the level of services you expected to receive and then you expected to pay the corresponding tax rate.
A number of years ago one relatively poor town, Claremont, sued the state claiming that the New Hampshire constitution guaranteed all children an equal education. Now I've read the New Hampshire constitution any number of times and for the life of me I can't find any such clause. And of course the courts ruled in Claremont's favor.
So, what happened? The people through their elected representative tried to come up with any number of compromises, each of which was ruled unconstitutional. So now we have a "donor" town and "recipient" town property tax system. My town Rye is a donor town. We have multi-million dollars houses on the ocean and two trailer parks. But the net is for all of us in town we have seen our property taxes doubled and in some cases tripled, so that we can donate to the recipient towns. So my money goes not to my school but rather to Claremont's, so the extra money I paid to own property in a town with good schools is wasted. And, oh by the way, do you think Claremont spent the extra money on schools and education? Well actually no, the spent on all sorts of "extras in town". You think I'm exaggerating? Google it!
Do you want to hear my story of how when I wanted to finish off my attic I was required to spend $5,000 on a septic system design? That by the way I was not required to build the septic system. I do, however, have a great design document. Oh, by the way my town is under a Federal wetland ruling, oh course I don't abut any wetlands.
Do you want to hear about the time I was sued by an employee I fired claiming age and sex discrimination. Yes, she was female and yes she was over 50. And yes she was stealing. And yes we were forced to settle.
Do you have time for more? I work in Massachusetts. Do you want to discuss court ordered gay marriage? Do you want to discuss court ordered benefits to illegal aliens? How many more examples to you want? It's the weekend I have time.
Regards,
Paul
This is the most interesting, substantive discussion I have seen. Thanks to all for educating a new to conservative activism gma.
(Continued from Original Article)
<p>
Rosenberg finds that the exact same conclusion applies to a whole series of supposed monumental reforms. In the instance of abortion, here is what Rosenberg has to say: "Precedent-setting decisions in women's rights have produced little because courts lack all the essential tools required of any institution hoping to implement change. Without the presence of non-court actors offering incentives, or imposing costs, without a market mechanism for change, and without willing actors, court-ordered change in women's rights has changed little." Think of it this way. Roe made abortion legal nationwide. But states, the Congress and the President have all kinds of power to slow down the number of abortions. In pro-life states, like Pennsylvania, these have been taken. In pro-choice states, like California, these have been eschewed. What's the net result? The kind of nationally mandated access to abortion which Blackmun wanted, the kind that is part and parcel with all of our constitutional rights? Not at all! Abortion is still difficult to get, and that difficulty depends upon the state...the exact situation before Roe. Why? Because the Courts lack the powers/resources to enforce their rulings.
<p>
But, you might respond, <i>Roe</i> moved public opinion. Not true. Rosenberg finds, just as with civil rights, the pro-women's rights rulings did not cause the public or governmental officials to change their minds. Sensitivity to women's rights predates Court action -- government officials were actually <i>more hostile</i> after Court action than before it. Public opinion acted independently of Court action. If the Court had anything to do with public opinion changes, it was very subtle. What caused the change on abortion attitudes in the public, and the pressure to legalize it, were social/economic forces operating since World War II. The Court had virtually nothing to do with the results, for they actually did nothing of any substance, they were just another actor swept in the tide of the times (and not one that magnified/extended the tide itself). When one objects to <i>Roe</i> one is not really objecting to the social changes it induced. These happened anyway and were not helped along by the Court. Rather, one is objecting to the fact that <i>Roe</i> implies a constitutional endorsement of those changes (a constitutional endorsement which, again, did not move public opinion a whit). One is objecting to the <i>symbolism</i> of <i>Roe</i>.
<p>
On balance, we can say that Hamilton's view of the constrained Court is more accurate. The Courts are <i>not</i> the agents of social change which people on both the left and the right claim them to be. They are, rather, more frequently swept up by social currents. Thus, the chances are that a really outrageous ruling that you have heard of recently will, in the aggregate, do nothing to effect social policy. Why? Because <i>somewhere</i> in the chain of actors between the ruling and the implementation, <i>there is going to be an actor who feels exactly the same way as you do and who is going to thwart the ruling either by not paying for it, not providing incentives for people to comply, or not punishing people who do not comply.</i> And, the trick is, the Court has no way to respond!
<p>
This is not to say that the Court is feckless. The Court can do many things very effectively. But they cannot exact social change because they are <i>dependent</i> upon society itself for its authority. If they are breaking ranks, they have no way to drag the rest of us along. They are effective insofar as they are operating within the boundaries of American's contemporary political consensus.
<p>
So for what, then, are we really advocating fundamental, substantive change in the Senate? For a change in the symbolic policies of the Court. We are sacrificing a very valuable substance to change only a series of symbols. We are aggravated, objectively speaking, not because the Courts are making public policy fit their worldview. They almost never are able to do this, and can only do this when there is broad-based support for that worldview. We are aggravated because they are saying what the Constitution implies when it comes to a worldview. Is that really a reason to upend the Senate, especially in light of my (1) and (2), where I argued that the Constitution does not imply any worldview whatsoever and that, even if it did, we are working outside of that worldview, anyway?
<p>
The broad point here is that consider what we are sacrificing, potentially, for what we are gaining. We are sacrificing the Senate as we have known it, and we are also risking the possible negative effects that could occur if/when the Democrats take control (because Lord knows they'll make swift and sure use of the new-found "majoritarianism" we have created for them by changing the Senate)...and what do we get in advance? We get a bunch of people in black robes to agree with us about the Constitution. Do we really need that?
<p>
************
<p>
Argument 4: The intended response of Frist was such that it was a remedy to (3)
<p>
Response to Point (4): I would cede as being true, but also irrelevant. Frist was responding to (3), but as I have shown that (3) is of virtually negligible concern, I think we can easily conclude that Frist was nevertheless wrong to do what he wished to do.
<p>
Argument 5: <i>Frist chose to respond because this is about the Supreme Court, especially multiple nominations in the future.</i>
<p>
Response to (5): This is the only point in the argument which my original post actually proves is incorrect.<p>
The idea here is that Frist was trying to bring the body under control. However, by upending the Senate's norm of deference, <i>he would totally lose control of it</i>. Once deference is destroyed, there would be no institutional mechanisms that can prevent chaos, in the literal sense of the word. Only the preferences of senators, embodied in tit-for-tat, do that. By eliminating tit-for-tat, he will reduce the body to <i>chaos</i>. Until chaos is controlled by some institution, <i>literally, <b>literally</b>,</i> any policy could be produced in the Senate.</i> This goes for Supreme Court nominations. Frist would have <i>no way</i> to bring the body under control and therefore guide a nomination to confirmation. Thus, even if Frist were looking forward to getting a Supreme Court nomination through, <i>this was a self-defeating action.</i> Throwing the body into utter, literal chaos is no way to ensure that you get what you want in six months!
<p>
Perhaps, you might respond, strong organizations, like parties could be created in the wake of chaos and therefore guide the nomination through. Possibly true, but not necessarily true and certainly not necessarily in time for a Supreme Court nominee. Throwing the body into chaos means that <i>no single actor would be able to exert influence sufficient to achieve a certain type of organization</i>. You must understand that when I say chaos, I mean real chaos, not in the way that people use the word "chaotic" as a metaphor. There is no way anybody can predict with certainty what specific kind of organization, let alone whether that organization would be more helpful when it comes to getting Bush's nominees through. Party organization seems to me to be the most likely, but that is just an impression (not a formalized proof) and I have no way of knowing whether party-oriented organization would enhance the chances of judicial confirmation. There is just no way you could know. Again, the important point here is that by ending deference, you end the way the Senate works. It would therefore work along no definable lines. In such a situation, anything can happen. I want to drive this point home because I am not sure it has sunk in with all of my critics here. We are getting rid of the Senate, but we are replacing it with <i>chaos</i>. This means that we are not any better off in terms of the long-term goal, and we might very well be worse off.
<p>
Just about the only thing you can predict is that the chaos would not get worked out in time for a nominee, which might arrive by July.
<p>
Is this an efficient solution? Does it maximize the chances of success while minimizing costs? It seems to me that it is not only <i>inefficient</i>, for the costs are too great, it is downright ineffective -- we are paying a great deal to get possibly no result and possibly a negative right. If you're interested in this, I have a bridge I've been <i>dying</i> to sell you...
<p>
**********
<p>
In conclusion, let me briefly restate my points in the context of the general criticism I have received.
<p>
<i>Argument 1: (1) Liberal judges are corrupting the hermeneutics of the Constitution and offending the moral sensibilities of millions of Americans.</i>
<p>
Responses: <p> (a) There is no way a true interpretation of the Constitution can be gleaned from the words themselves. This kind of "essentialist" methodology is logically unsound, and only leads to a <i>reductio ad absurdum.</i> This is the case even if one makes use of "original intent." <p> (b) Even if there is a true interpretation that original intent implies, we are already happily working outside of it.
<p>
<i>Argument 2: These Americans cannot get better judges that interpret the Constitution in the right way.</i>
<p>
Responses: <p> (a) These Americans do not constitute a majority on almost any level. To argue as such massively overstates the level of thought that the average American puts into politics. <p> (b) Even if they did constitute a majority, to argue a majoritarian case to enact original intent is directly contrary to original intent itself. <p> (c) Advocating a kind of majoritarianism is very dangerous, given 2-a. The tide can turn for reasons completely independent of the issues at stake.
<p>
<i>Argument 3: (1) and (2) indicate a "cancer in the workings of democracy" (i.e. "judicial tyranny"). Argument 4: The intended response of Frist was such that it was a remedy to (3). </i>
<p>
Response: These two collapse because they are predicated upon (1) and (2). Nevertheless, the spectre of judicialy tyranny is greatly overstated and needs an extensive amount of qualification. As Rosenberg argues, the Courts are a hollow hope, capable of only enacting symbolic changes that, very frequently, can have <i>the opposite effect</i> in terms of substantive policy changes. The question at hand: is symbolism, and symbolism only, really worth the Senate?
<p>
<i>Argument 5: Frist chose to respond now because this is all about the Supreme Court (not 1, but 2 judges).</i>
<p>
Response: If this was Frist's intention, it was completely ineffective. Upending the Senate does not mean that it will be more ready to get a Supreme Court nominee through because upending the Senate means <i>chaos</i> and therefore unpredictability. You cannot argue that an institution which is unpredictable is more likely to get a Supreme Court nominee confirmed than the existing one <i>precisely because the institution is unpredictable.</i>
Thanks for the response.
I don't have a lot of time but let me say a couple of things.
First the easier ones.
I have no idea how your attic problem is an example of the courts gone wild. Could you expand on that? Sounds like the Legislature gone wild to me, if anything.
Your example of being sued for harassment is also not relevant. That is a tort case and unless you can exlpain how this is a Liberal or Conservative interpretation issue I'm not sure how this applies.
I need to look over Claremont but it seems to me that the appeals court ruled correctly and told the Legislature to fix the problem. Explain how it was wrong.
Lastly all of your examples seem to be more of the "I don't like that" variety more than the "Liberal judges are ruining society" variety.
Judges are supposed to interpret the law. If you find the law Liberal then that's a problem you should take up with your representatives.
The real nuke was Democrats threatening to "shut down the Senate". Suppose they did. Come election time, which party would take the blame for shutting down the Senate? I don't think saying "Bill Frist made me do it" would be seen as an acceptable excuse. So, I don't think the Democrats would have shut down the Senate.
Also, what about the Constitution? To say that 41 Senators is sufficient to reject a nomination is a significant change. Isn't the constitution more important than the comity of the Senate?
...Paul. I remember you.
You would be the one in 24 hours who:
(1) Called my argument "silly."
(2) Called me "snotty and condescending" when I wrote to you why I disagreed.
(3) Admitted, kind of, that I was not in fact being "snotty and condescending," just reacting negatively to the fact that you castigated my work as "silly." But then instantly told me I should "lighten up" for taking offense and assured me that I, "a poet," was essentially powerless in society because I am outnumbered by all you "plumbers."
Now...you're saying that I "belittle" you. This, of course, implies to the Red Staters that I belittled you in our email exchange. In fact, sir, the opposite is true. You belittled me for being "learned" and then had a good chuckle out of indicating that I am powerless in America. All I did was argue that you were overstating your claims, especially about the judiciary.
Is disagreement belittling? Is giving citations belittling? I recommended you read The Federalist Papers. God forbid! You want to "hear how your elected officials are addressing (your) beliefs and your concerns." Well that is a darn good place to start, Paul. A darn good place.
You know, Paul, where I come from, making references to books and articles is actually a sign of respect. Did I say to you, "I am political scientist, hear me roar!" No, I didn't. I gave you citations, indicating (A) these thoughts are not originally mine; (B) you can feel free to go and check them out and (C) I did not think that any of my sources are beyond your capacities. Because you are not interested in reading McKelvey (1975) does not make you a better citizen or a better human being than I am, nor does it give you a greater purchase on the reality of American politics.
And I am very sorry you do not want to hear about the arcane traditions of the Senate. I'm sorry they don't interest you. Well, you can always not read my stuff, Paul. That'd be a good first step. That would be good for me, too. Because then I would not have to worry about writing an article that displeases you -- because apparently when you're displeased with a columnist, you insult the columnist via email and then claim that the columnist has insulted you to the general public.
And, by the way, I did not go to Yale. I went to the University of Virginia. I am damned proud of that. I'll spare you my own life's biography, and you can just assume, or not assume, that I've not been living in an ivory tower, that I, too, have actually seen a thing or two...despite the fact that I think Senate traditions are important.
I will say, in the meantime, to everybody else, that Paul has systematically misrepresented the email exchange that we had. I do not know why he has done this, but he has done it nonetheless.
I answered your question. Direct quote:
"Anyway, let's cede, for the sake of argument, the possibility of this impossible scenario. I would maintain my argument. Yes."
I will say, though, that I was tempted to respond not at all because you said, in so many words, that I was an ignorant slut.
Who's being condescending there?
Please tell me where in the constitution an appeals court gets to tell a legislator to fix a problem. Oh I forgot the great educated elites get to tell us "little people" how we should govern ourselves. I thought the American system was about the "people" governing themselves, not the appeals court governing them.
My attic directly relates to a court decision on wet lands, it was legislation by the judiciary. No legislative body required me to waste $5,000 on a septic design I didn't need.
And no the laws suit wasn't a "tort" problem but rather a judiciary problem where the court decided that all employers are guilty and all female employees over 50 are innocent.
Have you ever started and run a company? Have you ever employed and managed people? I would guess not, because if you had you would recognize my comments as a simple day to day reality.
And I have taken it up with my representatives, I've spent my time, money and efforts to change the result only to be block by your minority representatives.
Paul
...PatHMV, that my work displeases you.
I appreciate that you took the time to let everybody know publicly what you think of me, rather than writing me privately. I am also glad you chose to take a particularly undiplomatic way to express your opinion about the decline in quality on my side of the Internet. That makes me feel all warm and fuzzy inside after I have spent about 15 hours in the last 24 working on this article and the various responses.
I am also very sorry that I did not get back to the computer quickly enough to answer your question. I really should be quicker about things, as this pays so well. My wife and my family can just sit on the sideliness. Over 12,000 words in 24 hours is not enough. You have a question that needs answering. It was good of you to infer that because I had not yet responded, that I was not going to respond -- I am glad to know that you think so much of me!
My answer: compromise ala John McCain. As for not taking it on the chin, finding a good response that appropriately punishes the Democrats is one thing, but that was not the point of my piece. The point of my piece is that destroying the Senate is not a good response. If anything, you will not get to punish the Democrats that way because punishment implies an organization (unless you go fisticuffs with 'em) and destroying the Senate yields chaos.
And, I suppose you are right. I do not react well to criticism...of a certain kind. Of the kind that has followed here, which frequently impllied that I am an idiot for saying something that is apparently heretical. Got that in the email, too. Paul managed to insult me both via email and via Red State. He gets the big reward!
And go into some detail on why, but 12,000 words is a lot even by my standard.
For the record, I see nothing wrong with the quality of your writing, your motivation, or your reasoning. Just your conclusions.
With 12,000 words, though, my objection isn't that important. I'll bug you some other time. :-P
...how to punish the Dems?
Make them actually do the filibuster.
Also, I certainly hope the fact that I did not answer that question originally is why you think my work bites the big one these days. Such a line of thought seems to imply that I should be right wholly thorough responses so as to address every possible area of query. That is asking too much of anybody, even somebody who gets paid to write this stuff.
Paul I am trying to be respectful of your position but you aren't making it very easy.
I'll freely admit that I have never started a company. But I certainly do manage people and I RECOGNIZE your comments.
Apparently you've decided that the judiciary is to blame for all that is wrong with our country. Apparently you don't like the fact that the courts don't simply ignore the laws passed by the legislature and bring us back to the halycon days you yearn for.
As for where in the Constitution the judiciary gets its authority to tell the Legistlature to do things I refer you to Article III Section 2 of the United States Constitution. In addition your gripes are almost EXCLUSIVELY based on YOUR state's laws. So your complaining about judicial appointments at the Federal level is simply pointless, based on your problems with our legal system.
David Souter, strict constructionist?
Riiiight.
"Ultimately, Yarbrough contends, Souter has become the principal Rehnquist Court opponent of the originalist, text-bound jurisprudence that many of the more conservative Justices profess to champion."
-- Yarbrough is David Souter's official, and very sympathetic, biographer (note Y's dig at Reinquest et. al: "profess to champion")
requires a rules change too, from a practical standpoint. See this
"http://tigerhawk.blogspot.com/2005/05/more-on-filibusters-and-nostalgia.ht
ml">TigerHawk post on the "Nostalgia Option".
So, if the nuclear parliamentary trick itself would destroy the senate, then how do you enact the rules change forcing "real" filibusters without it? Or do you USE it, but for some impossible-to-discern reason THIS use of it is OK, but Frist's proposed use would end life on this planet as we know it?
Your argument is predicated on Rosenberg's naive assertion that Hamilton's "least dangerous branch" still is so. But when a Mass. Court can ORDER the legislature to pass a law within six months setting out thus-and-so "or we'll do it for you", it puts the lie to that hypothesis.
Further, on the specific case of abortion, you assert that foot-dragging legislatures in certain states have made it hard to get an abortion. I call BS on that one. Each and every time a legislature ATTEMPTS to do that, a court strikes it down -- fer instance, just last week Virginia's Partial Birth Abortion law was struck down.
If the People's Representatives are, by judicial fiat, not allowed to outlaw the infanticide of a baby whose head has already LEFT THE BIRTH CANAL, by punching a hole in her head and vacuuming out her brains without even the benefit of anesthetic, exactly was laws ARE the Legislatures allowed (by their betters in the Court) to pass? How exactly ARE these foot-draggers actually impeding ANY abortions?
The original Roe decision said that the State's interests superceed the mother's interests in the third trimester. Even if you accept that ruling as gospel, be honest: how long would our Robed Masters allow to stand a total ban on all abortions after the sixth month? The Holy Judiciary will brook no dissent by mere legislators or by the voters who elected them, from abortion on demand at any time, regardless that their original Roe ruling set out a more modest assertion as "Constitutional Truth". It was, and remains, the camel's toe.
Remember Judge Owen? Why was she so objectionable to the left? Because she, horror of horrors, actually deferred -- once -- to the Parental Notification Law in Texas as written. Rather than ignoring it or invalidating it, as the Left's idea of a Good Judge should.
Founded on an incorrect premise, your response to (3) (and (4)) goes by the boards. Moving to (5), you assert that Frist was trying to bring the Senate under control -- an effort doomed to failure, in your opinion. I assert that Frist was trying to bring the body under control with regards to judicial nominations. By disallowing minority rule on judges, he does accomplish that -- even if the Senators are no longer sweet and nice to each other. Even if it becomes impossible to pass any other legislation until the next election cycle.
You are making the same mistake that the Reid assault-on-deference brigade is: that it is justifiable, right, and natural to extend a disagreement in one field (nominations) to each and every other field of discourse in the Senate.
Call it the "But he MADE ME do it" defense. Sorry, it doesn't fly. Every once in a while, bluffs must be called and threats must be dared -- even if the bluff is not a bluff, and the threat is carried out. Otherwise, threats and bluffs become cost-free, and you end up with the tyranny of fear: every objectionable action will be countered with the threat to Total Senate Meltdown -- eventually on both sides. Then, consequently, you have achieved total senate meltdown. And in that environment, whence Senate deference?
So his biographer makes an opinion. Why should I care?
Souter has been a Justice over a dozen years. How bout you give some examples of how he DIDN'T follow originalist guidelines?
I don't consider Rehnquist to be the standard by which strict constructionists should be compared against. After all he was one of the 5 in Bush v Gore and whether you agree with the decision or not that was BLATANT activism.
So please provide a case and not some guy's opinion.
I herewith affirm my belief that you are NOT a "slut" (all-caps for emphasis only).
Also, Horserace Blogger, I do appreciate you confirming your initial answer. I found that initial answer so incredible the first time 'round that I assumed there was a misunderstanding. Please don't assume that a request for confirmation somehow implies condescension.
So, now we have confirmation. In your opinion, if 41 Democrats endlessly filibuster every nominee except the precise nominees they demand, that would neither violate the Advice and Consent Clause, nor justify a rule-change by the Senate majority. I disagree.
As I said, you are not a "slut."
your scenario is possible I guess. But in reality the Democrats won't likely fillibuster anyone but perhaps 1 or 2 nominees. Maybe in your world that is unacceptable but most people will accept the unprecendented 98% confirmation rate this President is likely to enjoy.
When it's all said and done President Bush is likely to have nearly ALL of his nominees confirmed. Estrada is the only nominee who definitely won't be confirmed, since he's been pulled.
But I guess if we argue in the extremes it's easier to justify the extreme actions of the people you support.
Flyerhawk, thanks for your comments, I guess.
You say that in reality the Democrats won't likely fillibuster anyone but perhaps 1 or 2 nominees. They've already filibustered far more than that, so I assume you're crediting the threatened rule-change with improving the situation. That threatened rule-change would have had zero effect had it been an empty threat.
Moreover, there are three and a helf years left of the Bush presidency, and Harry Reid has already said within the past ten days that he'll be filibustering Myers, Haynes, Kavanaugh, and Saad. Perhaps you don't read the papers.
Bush's first-term confirmation rate for appellate judges was the lowest since FDR. But perhaps you're happy with that status quo.
Incidentally, flyerhawk, sometimes the best way to illustrate the fallacy of an argument is to show the absurd consequences to which it would lead. There's even a name for that type of illustration: "a hypothetical." Maybe someday you'll realize that such argumentation can be useful.
(1) All else does not follow from Rosenberg being wrong. As I clearly indicated, point (3) in the argument I was deconstructing was already deconstructed by respones (1) and (2).
(2) I find it fascinating that you would call Gerald Rosenberg naive. I am guessing you have not read him -- for if you had, you would not say that. Rosenberg might evoke disagreement, but he also evokes a great deal of respect for the arugment, which you do not seem to possess. I would note that you are arguing from a methodology that I explicitly eschew: looking at judicial rulings only. You also reference state courts -- which was outside of Rosenberg's, my, and the Senate filibuster's domain. Beyond that, you pose a hypothetical, rather than dealing with Rosenberg's specific argument or the facts which speak to the credibility of that argument.
(3) I am not sure you grasped by fifth point. Ending TFT yields chaos across the board, as I argued in my original post. Chaos does not yield control.
I'll give you the final word. Your insult of Rosenberg, who by the way is a very good and smart man who wrote an excellent book, indicates to me that my time would be better spent in discussion with others.
Because once I provide a hypothetical you will in turn look for logical flaws of the hypotehtical.
Bush's first term confirmation rate of appellate judges is both a specifically structured stat and a misleading one. Apparently district courts are no longer important at all.
Daschle used a political trick to get certain nominees re-submitted. This skewed the statistics but didn't change the reality of the situation.
As I said when it's all said and done if more than 1 or 2 of Bush's appointments aren't confirmed it will be very surprising.
district courts are no longer important at all.
Yep. When courts were deciding cases based on law courts were not important. When courts are allowed to make law those courts become overly important. Appellate courts are where law is made today.
...for not having read points (1) and (2) of your original update before responding to points (3), (4), and (5). I saw the "addendum" but couldn't find the comment to which it "addended", until after I'd already written my response. Since all I had to go by at the time were your one-sentence synopses of (1) and (2), I just skipped 'em.
However, I later saw the update as part of the main post, which includes your thousand-word essay concerning (1) and (2). And yet, and yet, I still can't bring myself to respond to them. We're talking about the real world, and you're running off woolly-headed into the clouds of philosophy. That needs a few rounds of ale, before I'm willing to waste much time on it.
As far as Rosenberg goes, I'm sure he's very smart, "good", and all that. He's also a liberal by your own admission -- and in my mind, almost all liberals are naive. They generally believe, ultimately, in the perfectability of man, the possibility of earthly utopia, and the ability of government composed of "good" men to achieve these goals by collective (govt) action. That's naive -- and it's not an insult, it's merely descriptive.
(Note: my approach to the Court membership is not "if only we had good (wo)men there it would all be better". It is, rather, "power corrupts. Place (wo)men of good intention on the Court, and replace 'em as often as is feasible with other (wo)men of good intention -- the older once-"good" members inevitably having lost their "good"ness to the lure of power." OTOH, if you place already-powermad justices, we'll-make-the-laws-thank-you, on the court, you've lost before the game begins. And THAT's what the Left is fighting for, and that your "solution" capitulates to.)
About "naivete": I meant no insult, and do not believe it was one. It's the difference between calling someone "overweight" vs. "lardbutt". (e.g. "naive" vs. "foolish"). One is true, if not exactly polite to mention; the other is insulting, and not exactly synonymous (it is possible to be naive without being foolish; to say someone is naive is not necessarily to say they are foolish).
It is naive to think that today's courts are as powerless as the one Jackson defied in 1820(?). They have, by fiat, removed more and more of the political realm from the control of voters, and placed it into their own hands. (Where can I vote to overturn Roe? Before 1973, all abortions were illegal in my state. Can we pass a referendum returning to that situation? Can my legislators return us to it? No. Therefore, regardless of Rosenberg's belief in the powerlessness of the Court, he is demonstrably wrong, hypothetical "roadblocks" and "footdragging" notwithstanding.)
You fear chaos -- I fear cooperation. Put 100 people in one room, with the same goals and agendas -- to increase their own power and as a necessary byproduct thereof incrementally steal my life, liberty, and happiness with every law they pass -- that's cooperation I don't want. If pitting individual Senators at each other's throats, eliminating their nice little anti-regular-citizen country club of deference, by setting "interest against interest, faction against faction" -- that's something I can live with. It is profoundly conservative in that it is the same philosophy the founders used to establish the structure of the entire government itself.
OK, I'm jumping in late here, and this post is too long to critique at length at this stage. But a few things about your argument re: the courts:
- I think you underestimate the extent to which this whole crisis of Senate norms was precipitated by a long decline in the norms governing the Courts. If the Senate or the Presidency ceased to function as intended, we might re-examine how to compose them, as has been done by constitutional amendment in the past.
- Your argument about the inability of the courts to impose social change completely ignores abortion. With seven strokes of the pen, the Court obliterated laws in nearly every state, leading directly to tens of millions of abortions. A SCOTUS decision on same-sex marriage would likewise sweep away all ability of state governments to defend laws that affect scores of people and have been on the books for centuries. When the Court acts to strike down existing laws, it is exercising direct social control.
- The symbolism/substance distinction is also misplaced because of the precedential nature of court decisions. Perhaps Griswold v. Connecticut was a symbol, but it quickly metastasized into an entire body of law with wide-ranging effects.
- The problem with invoking Popper and hermeneutic uncertainty and the like, and throwing up one's hands at the possibility of having a judicial philosophy of any usefulness, is that it places the Court on the path of having no breaks whatsoever on its discretion. Original intent is not a flawless method, but the need to try to adhere to its disciplines at least cabins the Court to a known source of democratic legitimacy. The problem I have is the two-step whereby the Left is able to argue in the legislatures that Issue A is a legal issue above the consideration of mere elected officials while convincing the judges that Issue A is so compelled by the moral consensus of our times that mere constitutional language should not be needed to enshrine it beyond the reach of elected officialdom. That way may not lie a Thousand-Year Reich, but it is the way to Brussels, which is plenty bad enough.
You seem like a very nice, very sincere, very intelligent fellow, but I have chosen not to continue this discussion with you. There are wide, methodological differences that separate us:
1. You are a priori excluding the possibility that philosophical insights might be brought to bear here.
2. You are willing to evaluate not only books, but whole authors, before you have read them.
3. You are a priori excluding any arguments by people who might disagree with you on issues not immediately relevant to the topic at hand. I find this to be the largest portion of the gap between us. You also have an overly broad conception, and I would say naive conception, of exactly what constitutes a liberal. They are all utopians? I do not consider that to be descriptive. I think that is tendentious. I think that if you read the "best and brightest" of liberal thought, political or philosophical, you would have a different view.
4. You chose to respond to my post before having read all of it. I recognize that you did not find it, but you still chose to respond, anyway.
So sorry to be so late joining this debate, Jay. I just found your posts on RedState after a wistful return visit to the Horserace Blog. Imagine my surprise and pleasure to find that you are active in the blogosphere.
I thought your careful and well reasoned analysis of the consequences of invoking the nuclear option was just great. I've been attempting for weeks to make the same points to my husband, albeit in a far more clumsy manner. You explained far more eloquently than I ever could why the failure of the "nuclear option" was a good thing.
Like my fellow conservatives, I've been extremely frustrated by the endless escalation of the judicial wars by Senate Democrats. They act as though they are "entitled" to determine who sits on the courts and there is no low to which they will not sink in furthering their desires to establish a liberal judiciary. While I understood the emotional appeal of the nuclear option, I was concerned about the potential impacts on the Senate as an institution.
I worked on Capitol Hill for 20 years -- on the House side -- slogging for years in the trenches in the Republican minority, and enjoying the euphoric first few years after we won control of the House in 1994. It wasn't until after I joined the private sector (lobbying world) in 1998 that I grew to appreciate what you've termed as the preference based governing mechanisms that keep the Senate running.
While House Republicans and conservatives continually lament their weak-kneed sisters in the Senate (why don't they just roll the Chafees and Snowes, is the constant refrain), this betrays a fundamental misunderstanding of how and why the Senate works -- and the answer in two words is "unanimous consent." The Senate functions only because both sides consent for it to. Without that basic cooperation, the Senate would devolve to being another House -- and that would be a tragedy. The House is a wonderful institution and serves an important function in the scheme of our government, but so does the Senate. The Senate takes the rough edges off. If it devolved to just another majoritarian body, like the House, I agree with you that the American people would ultimately find the new situation too alarming, and the trends toward conservatism that we've enjoyed in recent years would swing in the opposite direction.
I do think you're being just a bit tough on Frist. I'm no Frist fan, but what I think you're missing is that I don't think he would have ever really pulled the nuclear trigger. For one, I'm still not convinced that he actually had 51 votes. However, I do think he effectively used the threat of the nuclear option -- and then worked behind the scenes to encourage those working for a compromise. It was only the threat, backed by a perception that he did have the votes to pull it off, that got the "Gang of 14" to finally come together.
The morning after the deal was announced, a liberal friend asked me what I thought of it. I told him that I thought the Republicans had won. We'll get Priscilla Owen, Janice Rodgers Brown, and all of the other judges confirmed who would have been confirmed absent a filibuster. What most miss is that the two nominees who were specifically left out of the deal did not have 51 votes for confirmation. There are apparently items in their Judiciary Committee files that give even some Republicans concern. The deal also established that merely being a strong conservative (read "originalist") is not sufficient reason for being kept off the courts. Finally, it saved the Senate.
Yes, I understand all of the political arguments your commenters have made about where the consequences of a Senate shutdown would have fallen. However, I disgree that the Senate Democrats would have been the real losers, because I think the liberal media would have effectively spun their actions in shutting down the Senate as saving the nation from extremist right wing Christian zealots. But whoever is right on that point ultimately doesn't matter. What does matter is that wherever the political consequences would have fallen, the institution would have been broken for a long time -- perhaps forever. You're right that it just wasn't worth it.
All of the angst now being exhibited over Judge Roberts' nomination -- by both the right and left -- is just that, a lot of handwringing that doesn't mean anything at the end of the day. If the deal garnered by the "Gang of 14" holds, it doesn't matter what Schumer and the liberal advocacy groups do to try to derail his nomination. They will fail. If the deal doesn't hold (i.e., the Democrats mount a real filibuster against Roberts and vote against invoking cloture to cut it off), then the Republican members of the Gang of 14 will withdraw from the Gang and present the Senate with a very real nuclear option threat. Nothing will have been lost but a few months of time.
Once again, Jay, your post was extremely well-thought out and as enlightening as was your analysis of the Presidential election. I'm so happy that you're back on line.
Why did they feel the need to remove the ability to 'blue slip' a nominee?