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Wednesday, April 06, 2005

Can You Hug a Judiciary with "Nuclear" Arms? 

[My apologies for the post title. I don't know what I was thinking.]

In an op-ed in yesterday's issue of Roll Call, Douglas Kendall and Jennifer Bradley argue that Democrats should embrace the "nuclear option":
[C]hanging the filibuster rule would not end the debate on judicial nominations. In fact, it would put this debate on new terms more favorable to Democrats, as the fissures between Republicans in the Senate would be shown in a harsh spotlight.

The argument that Democratic filibusters are all that stands between Bush's nominees and judges' robes only holds up if one assumes that Republican Senators, who have voted lock-step to oppose Democratic filibusters, would similarly support all of Bush's judicial nominations. Yet if one takes even a cursory look at the views of blue-state Republican Senators such as Lincoln Chafee (R.I.), Olympia Snowe (Maine) and Susan Collins (Maine) - not to mention the views of the constituents they represent - that assumption evaporates.

The oft-overlooked reality of the nuclear option is that it would shift the decision-making pressure and the public attention away from moderate Democrats, who are needed to sustain a nominations filibuster, to moderate Republicans, who are needed to confirm Bush's appointees. Democrats, one could argue, have been doing these Republicans a huge favor all this time, allowing them to toe the party line by voting to break a filibuster while letting them dodge an actual vote on the president's most radical nominees. Notably, moderate Republicans have been extremely reluctant to support the nuclear option. Could it be that going nuclear would force them to choose between the views of their party and the views of their constituents?
It's an interesting argument, and one that Noam Scheiber takes a bit farther in a blog post today:
eliminating judicial filibusters actually puts additional pressure on the White House. I agree with Will Saletan's argument that the White House has bought into the current "conservative pro-choice" consensus on abortion--i.e., it favors restrictions on abortion and abortion funding, doesn't favor overturning the basic right to an abortion. Today the White House can credibly argue that any conservative activist bent on overturning Roe v. Wade would be filibustered, so there's no point in nominating one. (Just as Bush recently pleaded to conservative evangelical leaders that there's no point in pushing an anti-gay marriage amendment since the votes in the Senate aren't there.) Absent the filibuster excuse, Bush would have a much harder time resisting demands from his base that he nominate that kind of candidate. The flaw in this logic--at least, what made me discard the idea--is that there are plenty of what my colleague Jeff Rosen calls "principled conservative judges" for the White House to choose from. These are people who personally oppose abortion but have sufficient respect for precedent that they're unlikely to support overturning Roe. I suspect people like this--a Michael McConnell or a J. Michael Luttig--would be agreeable to social conservatives, which would allow Bush to thread the needle on abortion.
Here's what I think: putting pressure on Republicans is great, as far as it goes, but there's every reason to think President Bush and the Senate Judiciary Committee would embark on a pedal-to-the-metal program of confirming judges drawn from the wackiest fringes of conservative jurisprudence in a post-"nuclear" Senate. Even barring this result, "veto player" theories give us every reason to expect a steady rightward trend in the beliefs of confirmed judges in a filibuster-free Senate, at least until the inauguration of a new President (and no matter the partisan make-up of the post-2006 Senate). My next post will have a nice little diagram showing why, but I imagine the logic is pretty obvious.

If the proponents of this line of thinking could offer more concrete examples of electoral benefit to be drawn from enactment of the "nuclear option," no matter how fanciful, at least we could think in terms of probabilites and expected benefits. But the Kendall/Bradley/Scheiber approach is blessedly free of such subtleties, and I'm not inclined to take it seriously.

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