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.]