Permission to reprint granted from the National Journal.
Like testosterone-crazed teenage drivers locked in a game of chicken, Democrats and Republicans seem on course toward a collision that could do grave damage to our democracy's distinctive blend of majority rule and minority protections.
Before the Senate self-destructs, it may be worth explaining why it has been a big mistake for Democrats to block up-or-down votes on 10 Bush nominees; why it would be an even bigger mistake for Republicans to shun compromise and ram through by party-line vote an unprecedented ban on nominee filibusters; and why both sides are hypocritical to pretend they are driven by principle, not partisanship.
Why the Democrats are wrong.
Senate Democratic Leader Harry Reid and others say that they are standing up for the right to "extended debate" on nominees. Bosh. They are standing up for the right to deny up-or-down votes, forever, to nominees who can't win the 60 votes required by Senate Rule 22 to end a filibuster.
It is also misleading for Democrats and liberal groups to claim that there are ample precedents for this filibuster-forever tactic. Their trick is to count as "filibusters" even genuine debates and short-term stalls that ended in cloture votes and confirmation.
The fact is that only one judicial nominee in our history (Abe Fortas) has even arguably been blocked by the filibuster-forever tactic that Senate Democrats have used since 2003 to block 10 majority-supported Bush judicial nominees. (Three of the 10 have withdrawn.)
And even the 1968 filibuster of then-Justice Fortas's nomination to be Chief Justice of the Supreme Court is a pretty weak precedent. That was a real floor debate, over ethical missteps as well as judicial philosophy. It lasted only a little more than a week. Then, President Johnson, having lost a cloture vote, withdrew the nomination at Fortas's request. This decision came amid damaging disclosures that might have led to defeat in an up-or-down vote.
It's true that Senate Republicans used various other stalling tactics to deny votes to dozens of President Clinton's judicial nominees (as Democrats had done to the first President Bush). It's also true that Republicans used filibusters to block two of Clinton's executive-branch nominees. But, as conservative columnist Charles Krauthammer wrote then, "Republicans have established a terrible precedent. Requiring nominees for high office to get not 50 but 60 votes is a bad way to run the country. Sixty votes should be required for something large."
Democrats' current use of the filibuster — the only nominee-stopping weapon available to the minority party — represents a major escalation of the partisan warfare over judicial appointments that has raged on and off since Fortas. Paeans to the filibuster as a vital barrier against majoritarian tyranny ring hollow when coming from Senate Democrats, 19 of whom (including nine current senators) voted a decade ago to abolish the filibuster. Senate Democrats including Reid, Barbara Boxer, Richard Durbin, Dianne Feinstein, Tom Harkin, Patrick Leahy, and Paul Sarbanes have also called in the past for up-or-down votes on all nominees.
Democrats have good reason to vote against some of the Bush nominees. (See NJ, 4/30/05, p. 1289.) But none is unqualified. And none seems so extreme as to justify use of the filibuster weapon -- especially since the Democrats may well be on their way to losing that weapon forever. Senate Majority Leader Bill Frist seems likely to get the 50 votes he needs (with Vice President Cheney as tiebreaker) to ram through a rule change by parliamentary power play.
Why the Republicans are wrong.
Unwise as the Democrats have been, the threatened Republican response recalls the Vietnam-era adage: "We had to destroy the village in order to save it." Aside from further poisoning the Capitol's partisan atmosphere, Republicans risk an inexorable unraveling of the protections for minority rights that are the Senate's unique contribution to our form of government.
A vote to muscle through a fundamental change in the filibuster rule by a narrow majority would make it blindingly clear that the same could be done to any other rule, at any time, by any 51 senators.
To soothe colleagues' concerns about this slippery slope, Frist stresses that all he means to do is end abuse of the forever-filibuster to deny votes to judicial nominees. But whether it be later this year, next year, or whenever Democrats regain control of the Senate, the temptation to follow the "nuclear" precedent by mowing down other minority protections would eventually become overwhelming.
Perhaps it would be to confirm a controversial executive-branch nominee, such as John Bolton. Perhaps it would be to clear the way for more tax cuts — or tax increases. Whatever the immediate issues, the Senate would drift toward majoritarian autocracy run by iron party discipline, like the House.
And how would Republican moderates — not to mention independents and Democrats — like to see the Supreme Court, along with the House, Senate, and presidency, controlled by the most conservative of Republicans?
As a constitutional matter, the argument by Frist and others for banning nominee filibusters is embarrassingly weak — especially when combined with the assurance that legislative filibusters are fine. The Republican constitutional argument ignores the Fortas precedent. It ignores Frist's own vote in 2000 to sustain a filibuster of a Clinton judicial nominee. It ignores the Republican use of forever-filibusters to defeat Clinton nominees Henry Foster (for surgeon general) in 1995 and Sam Brown (for a diplomatic slot) in 1994. And if it is constitutional to filibuster nominees for the president's team, then the same is surely true of nominees for the independent judiciary.
Hypocrisy aside, the Republican argument that the Constitution requires up-or-down votes on all nominees rests on emanations and penumbras from the Constitution more far-fetched than any of those imagined by liberal activist justices to protect contraception and abortion rights.
Not one word in the Constitution suggests that the Senate's Article I power to "determine the rules of its proceedings" applies any less to confirmation proceedings than to legislative proceedings. And Senate rules have long been used — not least by Senate Republicans during the Clinton years — to stop thousands of nominees, many of whom could have won up-or-down votes, by denying them hearings, burying them in committee, using individual "holds," and employing other tactics of delay.
What should be done.
Imagine for a moment the scene that would be unfolding if the shoe were on the other foot — if Democrats had won the presidency and the Senate and were now trying to put a few crusading liberals on the bench.
Senate Republicans would be filibustering, as they filibustered Fortas and stalled dozens of Clinton nominees. Senate Democrats would be crying foul and demanding up-or-down votes, as they did during the Republican filibusters and other stalling tactics of the Clinton years. Each side would be righteously brandishing the same arguments of principle that it is attacking now.
So this is not about principle. It's about politics. It's the kind of dispute that a healthy democracy resolves not by a destructive fight to the finish but by compromise. The weaker party needs to know when to fold 'em. The stronger party needs to help the weaker negotiate a face-saving surrender. That's how Nikita Khrushchev and President Kennedy averted real nuclear warfare during the Cuban missile crisis. And that's how Democrats and Republicans should avert partisan Armageddon now.
Reid is looking for a face-saving way out. Hence his offer (spurned by Republicans) to end some of the filibusters if Bush will withdraw the most controversial nominees. Perhaps Reid needs to sweeten his offer to pick off wavering Republican moderates.
Frist's proposal to allow up to 100 hours of debate on each controversial judicial nominee before demanding a vote seems reasonable in the abstract, at least for lower-court nominees. Except that Frist knows the Democrats have painted themselves so far into a political corner that to give up the filibuster entirely would be too ignominious a cave-in.
The Democrats' goal should be to live to fight another day — in the far more important Supreme Court succession struggles on the horizon — and retain the option of threatening filibusters should Bush pick provocatively conservative ideological warriors for that Court. The Republicans' goal should be to get most of the confirmation votes they want while preserving their institution and the filibuster rule that defines it.
It is said that the value of a sword of Damocles is not that it falls, but that it hangs. The value of a rule allowing nominee filibusters is not that it should be used, but that it should hang over the process, and serve as a moderating influence on the president.