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Jeff Cooper On the Nuclear Option

Law Professor Jeff Cooper recently gave a talk on the nuclear option:

Our Constitution, and therefore our nation, was born out of compromise, and the system of government that the Constitution created was meant to encourage, indeed frequently to require, compromise. There was good reason for this: the framers of the Constitution had experienced the unchecked majoritarianism that characterized the state legislatures in the 1780s, and they knew that temporary majorities could do lasting damage to the political health of the state. The need for compromise therefore is implicit in the assignment of powers to each branch of government and in the checks and balances that govern the interactions of the three branches. Compromise also was implicit in the legislative rules that governed Congress in the early days of the Republic. And among those legislative rules is the filibuster.

Sadly, compromise is a word seldom heard in Washington these days. Instead, the Republicans in the White House and Congress are determined, based on slender electoral majorities, to have their way, with no input from the Democrats. We see this in the practices of the House of Representatives, where the Republican leadership routinely refuses to allow Democrats to participate in drafting legislation, refuses to permit Democratic amendments to be considered, and places absurdly short time limits on debate over controversial bills such as the recent bankruptcy bill. And we're about to see it in an attack on two centuries of Senate practice, an effort to eliminate the filibuster.

At the moment, this effort is limited to the use of the filibuster on judicial nominees. In that regard, the so-called nuclear option--using a point of order and a mere majority vote to change a Senate rule, which ordinarily requires consent of two-thirds of the Senate to even reach a vote--is being employed to solve a problem that hardly exists. Democrats in the Senate have been more than willing to compromise on the President's judicial nominees. During the President's first term, more than 200 judges were confirmed with significant Democratic support. In almost all instances, those judges were not individuals that Democratic senators would have selected had the choice been theirs, but they acceded to the president's wishes. In only a small handful of cases did Democrats block confirmation, and then only when serious questions arose about judicial temperament, about competence, or about ideology well outside the American mainstream.

It's in service of this handful of extremist nominees that Senate Majority Leader Frist proposes to undo longstanding traditions of Senatorial comity, to destroy the working rules and relationships that have allowed the Senate to function.
The effort, though, is not just to achieve the confirmation of a handful of extremist judges. Nor is it simply to ease the path for the Supreme Court nomination that is almost certainly coming in a few months, although that is certainly a factor. The effort instead is part of an ongoing war on the judiciary, an effort to bend the third branch of government to the will of the first two. The extremism of this effort is demonstrated conclusively by the following: in all the heated rhetoric about the judiciary emanating from Republicans in the last month, the principal targets have themselves been Republicans, nominated by Republicans: the majority of judges in the Terry Schiavo case, Justice O'Connor, and most pointedly Justice Kennedy. It's not enough, in other words, to be a Republican, to be a small-c conservative. If you're not the right kind of conservative, you'll be targeted, you'll be bullied, you'll be threatened--with impeachment and sometimes, at least in veiled terms, with physical harm.

This is very dangerous for all of us. When the executive and legislative branches are controlled by the same party, and the leadership of that party evinces a disdain for compromise and a willingness to run roughshod over traditional restraints to get its way, the very dangers that existed in the 1780s--the danger of untrammeled majoritarianism--exist today. In this situation, judges--judges who focus properly on their judicial role rather than on partisan politics--may often be the sole check on majority power, the sole protectors of minority rights. This is why the Republican leaders are determined to reshape the judiciary in their own extremist image, this is why they must not be allowed to do so, and this is why the filibuster should remain in place.

As usual (except when he is rooting for the Mets), Jeff makes a lot of sense.

Posted by Dwight Meredith at May 6, 2005 05:12 PM | TrackBack