The fight over judicial nominations is moving past the posturing stage. On Friday, Vice President Dick Cheney removed any remaining doubt about whether he'd help G.O.P. senators use the so-called nuclear option in their quest to end judicial filibusters. With the nominations of Janice Rogers Brown and Priscilla Owen ready to come to the floor of the Senate, and Democrats determined to block them yet again, the Senate Republicans, with Cheney's help, have threatened to end judicial filibusters by a mere 51 votes, instead of 60 votes.
There are two possible outcomes to this game of nuclear brinksmanship. One sounds like fun. The other should give limited government advocates pause. The first outcome has Democrats retaliating by refusing cooperation on most of the ordinary business of the Senate. As former Democratic leader Tom Daschle explained to The New Yorker's Jeffrey Toobin recently, "The Senate runs on 'unanimous consent'…It takes unanimous consent to stop the reading of bills, the reading of every amendment. On any given day, there are fifteen or twenty nominations and a half-dozen bills that have been signed off for unanimous consent. The vast work of the Senate is done that way. But any individual senator can insist that every bill be read, every vote be taken, and bring the whole place to a stop."
Bringing the Senate to a crashing halt will hardly scare those of us who believe that no man's property is safe while Congress is in session. In fact, there would be something perversely entertaining about C-SPAN programming dominated by the monotonous recitation of 700-page agriculture bills. If only the senators could be forced to sit and listen. The Intelligence Reform Bill of 2004 is 236 pages long, and it's a safe bet few senators read it in its entirety. McCain-Feingold clocked in at a mere 36 pages, yet in February 2003 The New York Times reported that the Democratic and Republican party organizations had to hire high-priced lawyers and consultants to run seminars teaching senators and congressmen about the requirements of the law they had just passed. "I didn't realize what all was in it," Rep. Robert Matsui (D-Calif.) said. A breakdown in Senate cooperation would lead to a period of blissful inactivity, and could help educate the public about the increasingly incomprehensible statutes Congress calls "laws."
But the second possible endgame to the filibuster battle should worry you, unless you think too little legislation is a major problem in American life. There's a chance that the G.O.P.'s nuclear gambit could eventually lead to the death of the filibuster as a whole.
That would be disastrous. The theory underlying the Constitution is that, in political life as opposed to economic, transaction costs are good. As James Madison explained in Federalist 62, the Senate itself was designed in part to curb "the facility and excess of lawmaking." The filibuster isn't part of the Constitution, but it helps augment some of the Constitution's checks on promiscuous legislating. Since many of the constitutional checks on legislative overreach have eroded over the years, the filibuster is even more important today.
As the minority party in the first two years of the Clinton administration, Republicans used filibuster threats to hold up a porkbarrel economic stimulus package, campaign finance restrictions, health care "reform," and a bill banning permanent replacements for striking workers. The historical record in that period and others shows that the filibuster is an essentially conservative instrument.
Smart liberals in the commentariat, like Slate's Tim Noah and The American Prospect's Matt Yglesias, are starting to recognize this. As Yglesias noted in a recent column for the Prospect, Americans are congenitally suspicious of new "'big government' schemes,"
but once such schemes are put into place, they prove quite popular… The liberal difficulty is what it always has been—getting new stuff passed into law… it's very hard to think of any major conservative legislation that's ever been stopped by a filibuster.
It is, by contrast, very easy to think of liberal initiatives that filibusters have blocked. Indeed, as conservative activist Jim Boulet Jr. has wisely argued in a memo to his comrades, the filibuster is crucial to conservatism. By his account, without it, majorities would exist to raise the minimum wage; reform labor law to make new union organizing easier; ban discrimination against gays and lesbians in employment; reduce greenhouse-gas emissions; and close the "gun-show loophole."
(The Boulet memo can be found here.)
To Yglesias and Noah, the answer is obvious: ditch the legislative filibuster. Doing so might lead to some short-term victories for conservatives, but the long-term game favors liberals, who, without the filibuster, will be far better positioned to pass measures like universal health care.
During the judicial nomination fights of the George W. Bush administration, Republicans have floated convenient constitutional theories with the creativity of a Ninth Circuit liberal, such as the theory that giving a Catholic nominee a hard time for his views on abortion amounts to an unconstitutional "religious test for office."
But at least one of the GOP's constitutional arguments is quite strong. That's the "dead hand" argument against current Senate rules, which require a two-thirds majority to change the filibuster rules. That requirement entrenches the preferences of a past Senate and denies the present Senate its constitutional authority to make its own rules. But note that the argument against filibuster entrenchment applies to legislative filibusters as well as judicial ones. By invoking the "dead hand" argument, a future Democratic majority might be able to get rid of the legislative filibuster through a procedural gambit similar to what the Republicans like to call their "constitutional option."
And that move will be far easier to sell politically if Republicans get rid of the judicial filibuster by a simple majority vote. Senate majority leader Bill Frist (R-TN) and other supporters of the rules change make much of the claim that they are only aiming to end the filibuster for judicial nominations, not legislation. But a principled distinction—if there is one—between judicial and legislative filibusters will be mighty hard for the GOP to articulate when faced with the soundbite "you did it first."
What ought to happen instead is a return to real filibusters. The Jimmy Stewart–style filibuster became a rarity in the 1970s when then–majority leader Mike Mansfield ushered in a two-track system whereby the Senate could move on to other business when a credible threat to filibuster was presented. In the modern era, real filibusters only occur when the majority sees political advantage in the spectacle. In 1988, for example, in the midst of a filibuster fight over campaign-finance legislation, then–majority leader Robert Byrd ordered the arrest of Republican senators boycotting a quorum vote. Three Capitol policemen forced their way into Sen. Bob Packwood's office, grabbed Packwood by his ankles and both arms, and carried him feet first onto the Senate floor. "The knock on the door and the forced entry smack of Nazi Germany, smack of communist Russia," wailed Senator Arlen Specter. "I rather enjoyed it," said Packwood.
Washington needs more of this sort of thing. If the Democrats really think Janice Rogers Brown is a threat to the Republic, they ought to be willing to get hoarse-voiced and incoherent keeping her off the D.C. Circuit. And if Republicans are committed to these judges, they ought to be willing to sleep on cots in cloakrooms. For their salaries, perks, and power, the least they can do is give us a show.