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Published on: November 22, 2013
The Nuclear Option Undermines Our Institutions

Democrats moved yesterday to eliminate the filibuster in the Senate for most presidential nominees, sweeping aside a decades-old convention in what has come to be known colloquially in Washington as ‘the nuclear option‘: The rule change allows nominations to proceed with a simple majority, or 51 votes when all senators are present, down from the […]

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Democrats moved yesterday to eliminate the filibuster in the Senate for most presidential nominees, sweeping aside a decades-old convention in what has come to be known colloquially in Washington as ‘the nuclear option‘:

The rule change allows nominations to proceed with a simple majority, or 51 votes when all senators are present, down from the three-fifths threshold, generally 60 votes, that had long applied when opponents filibustered—or threatened to talk at length. The change would apply to all executive-branch and most judicial nominations, but not to nominations to the Supreme Court or to legislation.

This marks yet another step in the intensification of the ideological warfare in Washington. From now on, the confirmation of sub-Supreme Court federal judges will look more and more like partisan politics, gradually eroding respect for the law and the court system. This is not a good move. It wasn’t a good idea when the GOP proposed it under Bush and it isn’t a good move now.

The polarization in Washington that led to this vote does not mean that America as a whole is more polarized than ever. The country remains far less polarized that it was in the 1960s era of civil rights marches, urban riots, and the Vietnam War. But if America is less polarized, the party system is more so. Fifty years ago both Democrats and Republicans were sharply divided between liberal, moderate and conservative factions. White Southerners still mostly voted for Democrats for federal offices. As a result, liberal northern senators and conservative southern ones worked together on Capitol Hill—most of the time. It was also true that votes on important bills, like the civil rights laws, did not split up on party lines. Additionally, partisan loyalty would sometimes lead conservative Democrats to support liberal measures by presidents like JFK and LBJ.

What we see today is that the parties are more polarized. Conservatives are almost all Republicans and Democrats are almost all liberals. Partisan rivalry and animosity now exacerbates rather than toning down ideological conflict. Because party bonds no longer bring liberals and conservatives together, people socialize less across the ideological divide and there is less trust between ideological opponents and less ability or desire on either side to find creative compromises.

Both conservatives and liberals like the new state of affairs. The ideological factions want to control their respective parties, driving out the remaining moderates and getting a tighter control of the party machinery. This is understandable, but it does turn American politics from a system that moderates ideological competition and encourages compromise to one that rewards ‘purity’. We have a system that increasingly is more polarized than much of the population—and this is one of many reasons why the public continues to express less confidence and trust in the political class as a whole.

The filibuster vote will be hailed by liberals and attacked by conservatives for silly reasons. It’s pathetically easy to find quotes from President Obama and Majority Leader Reid attacking this idea as a gross violation of civil decency when their Republican opponents proposed ending the filibuster back in the Bush years. And the GOP is exactly as hypocritical as the Democrats in now violently denouncing a measure they themselves once proposed. It is a genuinely despicable sight as both parties appeal to sacred principles to justify or oppose an ordinary power grab. This too will exact a payment in diminished public respect for the people who write our laws.

The result of this vote will likely be to further depress public confidence in Washington generally and in Congress and the federal judiciary more specifically. The more the courts look like a political football, the less respect the public will have for their decisions—and ultimately that translates into a declining respect for our constitutional system.

Democratic republics cannot survive indefinitely if partisan factions and ambitious politicians continually push the envelope of acceptable behavior. Moderation in politics isn’t just about a kind of wishy washy centrism. It is also about a concern for the stability, durability and legitimacy of the key institutions of government. In looking for a way to uphold the constitutionality of the ACA, Chief Justice Roberts was, in our view, taking a very statesmanlike and moderate view about the role of the Supreme Court. Given its controversial role in adjudicating the election of 2000, the Court risked being seen as a simple instrument of partisan politics—something that if it continues and deepens could undermine our political system as a whole. The Court’s ruling allowed what we at VM considered a bad law to take effect, but the Supreme Court’s job isn’t to protect the people from poorly conceived and poorly drafted laws. It’s job is to protect and uphold the Constitution of the United States, and that job is not being done if the Court is being seen as a nakedly partisan body.

Yesterday’s vote did not violate the Constitution. It was not revolutionary. There are good arguments to be made for it—as the Republicans should know, having made most of these arguments themselves just a few years ago. But the vote does chip away at the foundations of the American system. Those foundations are strong but not infinitely so; enough termites given enough opportunity can destroy the stateliest of mansions.

Yet blame for yesterday’s bad vote doesn’t just rest with the opportunistic Democrats who pushed it through. It rests on all those, Republican and Democrat, who over the years have slighted their common duty to strengthen the foundations of American democracy. It rests on the presidents of both parties who have gradually and progressively gamed the judicial appointment system to seek maximum ideological advantage from each court appointment. It rests on the senators in both parties who have abused the confirmation process to counter-game presidential court gaming. It rests with single issue advocacy groups and ideological ginger groups on both sides of the political spectrum who encourage people to prioritize particular issues and positions over the health and sustainability of the political system overall.

We are not in an era of unprecedented polarization. We are not even in an era of unprecedented chicanery and corruption. But we are in a time when too few of our national leaders think carefully enough about the need to preserve and protect the legitimacy and dignity of our political system.

Yesterday’s vote was another step forward on a road that leads downhill. That is unfortunate; it is easier to go downhill than up, and we are likely now to see the political system as a whole lose a little bit more of the legitimacy and public respect that, in the end, are necessary if our constitutional republic is to continue to endure.

[Photo of Harry Reid and Chuck Schumer courtesy of Getty Images.]

show comments
  • Jacksonian_Libertarian

    I have felt for some time that the Founding Fathers made a terrible mistake in their design of the Judiciary branch of the Federal Government. When every Justice must run the gauntlet of approval from the Executive and Legislative branches, just how independent can they really be? If only lackey’s of the Executive and Legislative branches, ever become justice’s, how hard are they really going to fight for the State’s and the People’s rights, against a power hungry central government?
    The States and the People should be choosing the Justices that are going to be protecting them from unconstitutional Federal Government over-reach. As things now stand the diffusion and division of power desired by the founding fathers, has been subverted, and the American people are paying a heavy price in lost Freedoms and Liberty.

  • rheddles2

    The push for ideological purity was driven by direct primaries for the presidential nomination. Thank you McGovernistas. Pure democracy to clear out the smoke filled room leads to worse government once again.

  • gerald

    Actually, this is a long range strategic move on the part of the democrats to ensure that only democrat/liberal judges can claim to have “the experience of the bench”.
    This continual rationalization of baby steps pushing me toward the cliff edge, in the name of “moderation”, “bi-partisianship”, and “be reasonable, it’s such a small step!”, will end with someone going over the edge: Conrary to expectations and deep desires, it will not be me.

    • gerald

      Ooof. My bad. They’re playing volleyball, and this is the setup for the spike on Immigration “reform”.

  • Boritz

    And the GOP is exactly as hypocritical as the
    Democrats in now violently denouncing a measure they themselves once proposed. -VM

    I know Jimmy Carter believes that lusting in his heart is as bad as actually commiting the act. Apparently this author has similar beliefs. I thought there was a difference between ‘once proposing’ and actually pulling the trigger. I didn’t think Mitch McConnel’s denunciation was all that ‘violent’ either. I propose (but will not actually deliver) a slap for this writer.

    • Thirdsyphon

      If, when the GOP is next in control of the Senate, they move to reinstate the filibuster instead of finishing the work of eliminating it, then I’ll accept your claim that they’re less guilty of hypocrisy than the Democrats are. But we both know that’s never going to happen.

  • Bruce

    “The result of this vote will likely be to further depress public confidence in Washington generally and in Congress and the federal judiciary more specifically.” The punditry thinks that Americans understand what just happened? If 20% of the people understand this, it would be surprising. Next time the Republicans take power in the Senate, there will be cries to repeal this move in the interest of “minority rights.”

    • Thirdsyphon

      There will indeed be such cries, but I’ll be genuinely shocked if those cries are actually heeded by a GOP Senate majority.

  • lehnne

    The political ruling class has been undermining the institutions of governance and law for some time now. The only news they are no longer concerned about concealing it

  • Andrew Allison

    “Every country has the government it deserves”
    Joseph de Maistre
    “We the People” not merely elected these so-called “leaders” but keep reelecting them.

  • Goldenah

    I think what’s been forgotten is the role Dear Leader has played in this situation. He’s been ignoring the Constitution and laws he is supposed to abide by for the last 5 plus years. He rules by fiat and decree now. It’s creepy.

    It’s one thing to fault both parties for hypocritically blathering about the importance of keeping the filibuster. Yet, the ones who pulled the trigger is at fault. There is no moral equivalence here, the maliciousness solely belongs to the political cultists of the Democrat party.

    • Thirdsyphon

      There’s nothing immoral about changing Senate procedural rules to conform with the Constitutional vision of how that body was intended to function. It was politically aggressive of Senator Reid to invoke the “nuclear option” to alter those rules; but Senator McConnell’s unprecedentedly pervasive use of the filibuster was politically aggressive as well.

      • circleglider

        And pray tell, from what fount does “the Constitutional vision” of a purely majoritarian Senate spring?

        • Thirdsyphon

          Art. I of the constitution sets forth a number of specific, limited circumstances in which a Senate supermajority is required (overturning a Presidential veto, ratifying a treaty with a foreign power, etc.) on all other votes, as in the house, the Constitution states that they will be passed if they’re supported by a simple majority.

  • Thirdsyphon

    The filibuster was an archaic, undemocratic, and frankly bizarre institution that the Framers never envisioned or intended to create. Were it not for the deep reluctance of the judicial branch to meddle in the political operations of the legislature, it would have been ruled unconstitutional and outlawed two centuries ago. On balance, the Republic has been poorly served by this practice, and I’m not the tiniest bit sorry to see it scaled back.
    Does this mean that the Republicans will finish the job of eliminating the filibuster when the shoe is on the other foot (as it inevitably will be)? I certainly hope so, not because I’m a fan of Republican governance, but because crippling governmental dysfunction serves absolutely no one.
    The Framers envisioned a Senate in which a supermajority would be required for only a handful of specifically enumerated actions: the ratification of a treaty, the amendment of the Constitution, the expulsion of a sitting Senator, and the impeachment of a federal official. For everything else, their intention was that the majority of Senators should rule. In correcting this long-standing mistake, the Senate has refreshed my trust in that institution, not undermined it.

    • mgoodfel

      First, do you really want a Senate that’s more like the House?

      Second, I’m one person that is delighted with “crippling governmental dysfunction”. Government is a menace, and the less it does, the happier I am.

      If there’s one thing I’d like to see, it’s for more of these hot button issues like education, health care, abortion, etc. to move back to the states.

      If a state government makes a mess of things, you can always move. And the competition for rich taxpayers and businesses at least gives the states pause now and then over some of their stupider ideas. The federal government has no such worries, and thinks it can remake the economy with a wave of its hand (or the excretion of 2000 pages of unread legislation.)

      • Corlyss

        Agreed. You want fast movement, stick with the states. The national government is too deeply involved in too much for its own good and ours.

    • Corlyss

      “The filibuster was an archaic, undemocratic, and frankly bizarre institution that the Framers never envisioned or intended to create.”

      Um, you know this because . . . ?
      Have you read Federalist Papers, specifically # 62 (http://thomas.loc.gov/home/histdox/fed_62.html)?
      If tyranny of the majority was always present in the FFs’ thoughts, if Thomas Jefferson wrote the rule, and if it was adopted by one of the first Congresses, what’s your evidence that it the filibuster was NOT an intentional protection for the minority?

      • Thirdsyphon

        Federalist #62 supports my position, not yours. It discusses the protection of minority interests by means of: 1) creating a second chamber of the legislature, selected by different means than the first; 2) giving the states equal representation in that chamber, whatever their size; and 3) giving the members of this body a long enough term of office -6 years- to give them some independence from having to heed every transient swing in public opinion. All of *those* minority protections made it into the Constitution. The filibuster did not.

    • circleglider

      Just because you (or your favorite partisan hack) assert that “the Framers never envisioned or intended to create” supermajoritarian features such as the fillibuster does not make it so.

      Indeed, America’s founding generation was decidedly anti-democratic. The “legacy” that you describe belongs instead to the Progressives.

      • Thirdsyphon

        If the Framers wanted to impose a supermajority requirement on Senate votes, all it would have taken was an extra line of penmanship at the appropriate place in Art. I.

  • Anthony

    The compromise during the Bush Administration had a few key points. The Republicans agreed to refrain from changing and rules. In exchange for this, the Democrats agreed to refrain from using the filibuster against judicial nominees, except in extraordinary circumstances. As a result, most of Bush’s ultra conservative nominees were confirmed.

    Now, the GOP will not confirm ANYONE to the D.C. Circuit. They are not saying that Obama needs to appoint more moderates, they are in effect saying that anyone appointed by Obama is not acceptable. Is this really an equivalent situation?

    • circleglider

      In what alternate universe are Peter Keisler, John Roberts and Miguel Estrada sitting on the D.C. circuit?

      Yet in the reality in which we actually live, Sri Srinivasan was nominated by President Obama, confirmed by a vote of 97-0, and is now sitting on the D.C. circuit.

  • Anthony

    “Yet blame for yesterday’s bad vote doesn’t just rest on all those, Republican and Democrat, who over the years have slighted their common duty to strengthen the foundations of American democracy. Is rests on the presidents who have gradually and progressively gamed the judicial appointment system to seek maximum ideological advantage from each court appointment. It rests on the senators in both parties who have abused the confirmation process to counter-game presidential court gaming. It rests with single issue advocacy groups and ideological gender groups on both sides of the political spectrum who encourage people to prioritize positions over the health and sustainability of the political system overall.”

    Democracy is difficult. As emotionally committed one may be to democracy, operating it is as hard to balance as an object in perpetual motion (people in general are not the least bit democratic at heart). Nevertheless, Democracy remains a vital American Ideal and which can only enrich our nation.

    That said and in line with WRM’s above quote, “this system of popular elections was not one devised by the perspicacious Founding Fathers but represents a later dubious embroidery on the basic institutional system, an embroidery that most of the Founders would have rejected as absurd. Madison, for example, was astute enough to discern what would happen under the universal franchise. The Fathers often hymned about had no confidence in a universal franchise that would elevate poor boys in urgent and continual need of funds to high office, there to be readily tempted and seduced and to acquire personal interests of their own that ran against those of the populace.”

    The above implication vis-a-vis Founders suggests that politics like any other discipline requires qualified practitioners. Yet, Democratic politics as practice in U.S., contrary to democratic theory, is full of…and is not an area of expertise that can be readily practiced with proper success by anybody. For the uninitiated, ther exist in America both theoretical and practical politics. Quackery is the very essence of being a politician on the American scene today (of course making exception for the exceptions). But despite WRM’s lamentation, officeholders (whatever one may say of them) meet the criteria of the broad electorate. In America, they have “what” it takes to gain acceptance by the populace (perhaps resulting in: decades old institutional conventions being irrelevant, ideological and partisan factions normalized, and a gratuitous media feeding the incredulity).

    One final note: “what made the Founding Fathers and the signers of the Declaration of Independence so noteworthy was not that they were men of property, they were noteworthy because they happened also to be men of broad learning and insight ready to defer to those of their own number like James Madison, Benjamin Franklin, and Alexander Hamilton who showed especially sharp insight.”

  • Corlyss

    Thank God it was Dimmycrats that did it. Maybe now there will be some modest effort to hold Dimmycrats accountable for their consequences instead of the usual beaming warm affection they get for their disastrous good intentions.

    I have a prediction, so please note: When the Dims turn out the lights on this Congress and leave the keys for the Republican majority to succeed them in Jan ’15, they will reinstitute the filibuster by the same air-headed majority that killed it yesterday, thus forcing Republicans to revive the majority rule and take the heat or do without it.

    Somewhere the late Robert Byrd is having a screaming tantrum.

  • Parker O’Brien

    ‘And the GOP is exactly as hypocritical as the Democrats in now violently denouncing a measure they themselves once proposed.’

    Which is relatively worse, the person who threatens murder or the person who commits it? I’d say the Dem’s hands are far more dirty…

  • Charles Scheim

    What the heck are you talking about? Judicial nominations are, have always been, and always will be, partisan politics. Democrats nominate judges that they believe are partisan to their viewpoint and Republicans do the same.

    If anything, the end of the filibuster will make things less partisan. If a president whose party has a Senate majority nominates a candidate who is nonetheless not approved, it will be on non-partisan grounds that the Senate vote the candidate down.

    With the filibuster, the Republicans essentially can veto any and all candidates. How is that not politically partisan?

  • Bruno_Behrend

    As a Kirkian conservative, I understand this argument, but it is still wrong under today’s circumstances.

    The fact is that to repeal or reform the blue model, we will need simple majorities in the Senate. The blue model is still strong enough that a 60 vote threshold will cement it pkace forever.

    We need to get rid of the filibuster for ALL legislation, win elections, and dismantle and replace the tattererrd and infantilizing nanny state.

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