As Senate Majority Leader Bill Frist insists that this is the week—no, really, this is the week—that Republicans flout Senate rules and take away the Democrats’ ability to filibuster President Bush’s judicial nominees, the new buzzword among conservatives is “fairness”. It’s only “fair,” scream the pages of the National Review, that the president’s picks for the court get an up-or-down vote. But what, pray tell, is so intrinsically “fair” about an up-or-down vote? No one seems able to say.
Let’s cut the crap. Frist’s “nuclear option,” as former Majority Leader Trent Lott first dubbed it, has nothing to do with making the confirmation process more “fair” and everything to do with placating an increasingly agitated religious right. It’s a power ploy, and no sense pretending otherwise. If John Kerry were president, Republicans would be bottling up his nominees—as they did to over 60 of Bill Clinton’s picks—or, failing that, launching their own filibusters as a “fair” way to combat Kerry’s “extremist” judges. And liberals would be decrying the maneuver, as they have traditionally done. So whatever; we’re all hypocrites. The interesting question, then, is this: If Frist does in fact have the votes to push the red button and go nuclear—and it’s still not clear that he does—who wins in the long term, and what will it mean for the future of the judiciary?
The strongest argument for the judicial filibuster is that it forces presidents to pick moderate judges. Recall that Bill Clinton, faced with a hostile Republican Congress that had already scuttled many of his judicial picks, decided to play it safe with his Supreme Court picks and went with Ruth Bader Ginsburg and Stephen Breyer. Both liberal, yes, but ultimately not very radical. According to a study by former Solicitor General Seth Waxman, if one defines “judicial activism” as a willingness to strike down state and federal laws, then Ginsburg and Breyer are in fact the two most restrained justices on the court. If you don’t like activist judges, the case for the judicial filibuster seems strong.
But Republicans, of course, have nothing against judicial activism, regardless of what Tom DeLay might say about a judiciary “run amok.” Indeed, one of the nominees that Democrats have vowed to filibuster, Janice Rogers Brown of the California Supreme Court, has long declared her contempt for judicial precedent, notably writing in one opinion, “If our hands really are tied, it behooves us to gnaw through the ropes.” Many conservative and libertarian legal scholars, like Randy Barnett of Boston University, believe that the mark of a good judge is whether he or she has a consistent method of reading the constitution: Barnett prefers “originalism,” which—much like President Bush’s “strict constructionism”—holds that judges should stick with what the clauses in the Constitution were originally intended to mean. A 60 vote hurdle, one could argue, would be biased against consistent “originalists” and in favor of judges who just muddle through cases, satisfying as many interest groups as possible.
But the idea that there’s one true reading of the original Constitution seems misguided. There are liberal originalists too—like former Justice Hugo Black and Yale legal scholar Akhil Reed Ahmar—and it’s doubtful that conservatives would ever approve of their methodology. Ultimately, as Cass Sunstein has pointed out, judges always tend to fall back on their political views to fill in any uncertainties about the Constitution; there’s a reason why Justice Antonin Scalia’s “originalism” usually manages, like magic, to jibe with his conservative worldview. But if political views are what matter most, then the filibuster is desirable to ensure that the outlook of judicial nominees somewhat accords with the broader political outlook of the Senate itself.
It could also be argued, however, that without a filibuster, Republicans would be held accountable for any radical judges they did confirm, and pay for it at the voting booth if they went too far. This seems to be the process envisioned in Federalist #76 and #77. But this assumes that politicians always pay a price for immoderation. In reality, the nature of our democratic institutions—from the gerrymandered House to the unrepresentative Senate and electoral college—means that a congressional majority can often exist without majority support among the public. At the moment, 50.8 percent of Americans are represented by the 44 Democrats and one independent in the Senate; the filibuster is the only protection that majority has in the judicial process.
No doubt Republicans are aware of this. They also perhaps know that, for the foreseeable future, Senate numbers will usually work in their favor. Consider, of the 20 least populous states, only five (Vermont, Delaware, Rhode Island, Hawaii, Maine) are reliable “blue” states. It’s a decent bet that, in the long run, Republicans will have a slight Senate majority more often than not, and hence, will benefit more often than not from being able to confirm their own judges by slim margins.
But for all the arguments that eliminating the filibuster would help conservatives, the opposite case is probably stronger. The sort of thing many Republicans would like to see the judiciary do—striking down abortion rights or chipping away at environmental protections—are genuinely unpopular among the public, and will only get more unpopular over time. The latest Pew Poll showed that the public opposes “making it more difficult for a women to get an abortion” 55 to 38 percent. Of late, the Supreme Court has followed a relatively centrist judicial doctrine, and only the religious right gets truly exercised about voting en masse to reshape the judiciary. But if that centrist doctrine ever became upended, and every election turns into a referendum on what sorts of judiciary the nation will have, the moderate majority in this nation could slough off its electoral apathy and punish those politicians who favor right-wing judges.
There’s another long-term danger for Republicans who want to go nuclear. Getting rid of the filibuster for judicial nominees would inevitably mean that the filibuster for all legislation gets scrapped. As writers like Slate‘s Timothy Noah and the New Yorker‘s Hendrik Hertzberg have long pointed out, that would be a fantastic thing for liberals. Conservatives have long used the filibuster to block all manner of progressive legislation, from federal laws that enforce civil rights to Bill Clinton’s Health Security Act. Indeed, liberals have only been able to get large, sweeping legislation through Congress when they had filibuster-proof majorities during the Roosevelt and Johnson administrations. Once liberal programs are actually passed, however, they prove very difficult for conservatives to repeal—the right has found it impossible to phase out Social Security, even though the Republicans control all three branches of government—because they’re so popular.
By contrast, there isn’t much in the way of conservative legislation that has been blocked by the filibuster, and most of the right’s so-called “agenda”—stripping away labor laws, doling out corporate pork—is easily reversed. To that end, it’s no surprise that right-wing groups like the anti-union National Right to Work Committee and the Gun Owners of America have opposed Frist’s “nuclear option” because of these very fears.
All told, the judicial filibuster is a good thing. It promotes moderation on the courts and makes it more likely that judicial nominees reflect, if not the will of the people, then at least the will of the wider Senate. The right will no doubt benefit in the short term from going nuclear. But taking the longer view, the filibuster has historically been the best friend of conservatives, with their relatively unpopular views and legislative agendas. They may find it inconvenient at the moment, but there will surely come a day when they will miss it.