”Nuclear option” would blow up pluralism
“The genius in America can work any constitution,” said British historian James Bryce. Bryce understood that the success of American democracy is not its constitution but its pluralist political culture. Rather than a winner-take-all competition, American politics usually has been characterized by compromise, mutual respect and the search for common values.
Today, partisan extremists in Washington, D.C., are testing this spirit. Republicans in the Senate, led by Majority Leader Bill Frist, R-Tenn., have threatened the “nuclear option” to change Senate rules and eliminate filibusters for judicial nominees.
The Senate has a long tradition of protecting minority rights. This is clear in the structure of the Senate, which gives every state equal representation regardless of population. The right to speak on issues is part of this tradition. In order to end debate on an issue or nomination, senators need 60 votes.
President Bush has argued that changing the filibuster rule would merely require an up or down vote on his judicial nominees. But abandoning a 200-year-old Senate rule alters the very style of American democracy. American political pluralism is nurtured by a system of institutional checks and balances that divide power to prevent simple majority rule. Provisions such as federalism, the separation of powers, bicameralism, judicial review, the Electoral College and presidential vetoes all force politicians to seek consensus and build broad coalitions in order to govern.
The system has been remarkably successful in safeguarding liberty and checking political extremism. Recently, however, pluralism and consensual politics have been under attack. During the 1990s, the House of Representatives changed its rules to strengthen the power of the majority party and weaken minority influence. Gerrymandering created safe districts for both parties so that candidates no longer must make bipartisan appeals to get elected. Since the 1990s, rising partisanship in the House has produced budget impasses, party-line impeachment votes and a series of ethical scandals affecting its leadership. Senate Democrats and Republicans should look hard at the poisonous atmosphere in the House and consider whether they want the same. Such thoughtful Republican senators as John McCain of Arizona, Lincoln Chafee of Rhode Island and Olympia Snowe of Maine have opposed changing the filibuster for this reason.
In addition to undermining the tradition of bipartisanship in the Senate, the rule change would negatively impact the judiciary. Judging is not an apolitical process, but judges are expected to be impartial and non-partisan. It is one thing to have sincere disagreements about the best way to interpret provisions of law; it is altogether different to appoint judges supported by only one party. If a judicial nomination cannot muster at least 60 votes in the Senate, that nominee has failed the most basic test of impartiality.
Changing Senate rules on judicial confirmations might make sense if there were a crisis in staffing the courts. But there is not. The Senate approved 204 judges during President Bush’s first term, filibustering only 10. The federal judicial vacancy rate is the lowest it has been in 15 years, and the Senate’s approval rate for President Bush’s judges is higher than for Presidents Reagan, Bush Sr. and Clinton. The Senate has confirmed the vast majority of Bush’s nominees while preventing only a few extremists.
Consider William Pryor Jr., nominated to the 11th Circuit Court. In a recent Supreme Court case that struck down Texas’s sodomy law, Pryor filed a brief comparing homosexual sex to necrophilia, bestiality, possession of child pornography and even incest. Pryor would now be sitting on our federal courts, were it not for the filibuster.
The 10 judges filibustered during Bush’s first term also should be considered in light of more than 60 Clinton nominees stopped by Republican senators during the 1990s. Most of these nominations were killed by another counter-majoritarian Senate rule called the “blue slip” process, in which a hearing is denied if even a single senator from the nominee’s state objects. But now some Republicans are acting like a schoolyard bully, wanting to change the rules of the game once in control of the White House, hoping to pack the courts with right-wing extremists.
The test for supporting a rule change is simple: Would you favor it if the other party were in the majority? Of course, asking that question assumes the spirit of pluralism and consensual politics that such rules promote. Surely President Bush can find plenty of qualified, conservative judicial nominees, like the 204 already confirmed, who are not extremists and can be supported by 60 senators. We will all be better off if he does.
Changing the rules of the U.S. Senate is not an appropriate way to respond to the filibuster of a few extreme nominees. Instead the president and Senate should work together to find fair-minded nominees whom at least 60 senators can support, the way they have for the past 200 years.