Wednesday, May 25, 2005

I HAVE NOT COMMENTED on the "nuclear option" battle before now because, to be completely honest, I found it confusing and hard to get a handle on. Yesterday, a day after the "compromise" was reached, I decided to read some of the coverage on Memorandum.

The gist seems to be that no one is entirely happy, which is predictable, given that the Senate deal was a classic centrist solution. Some are unhappier than others, though. The loony right is furious, because they didn't get everything they wanted; i.e., an outright ban on the filibuster and straight up-or-down votes on all Bush's nominees. More moderate voices consider it an "incredible accomplishment" given how venomous the battle was -- but also point out that nothing has really been solved.

I tend to agree with that last point of view. Yes, it's obviously good that the filibuster was not abolished -- yet. But I don't share Ezra Klein's buoyant reaction to Monday's decision: "Done deal. ... Crisis averted. ... the right didn't get what they wanted -- the end of the filibuster before Rehnquist retires. ..." Ezra also implies that it will be easier to defend future Republican attacks on the filibuster, because such attacks will probably be triggered by Supreme Court appointments -- which Ezra says most people consider more important than federal district court judges.

So long as the question was appellate judges, few would see why it was such a big deal. A lifetime appointment to the Supreme Court, however, is widely understood to matter, and trying to end the minority's options on that will prove significantly harder in the court of public opinion.

I disagree quite strongly with the notion that federal appeals court judges "don't matter." The federal judges Bush appoints now will be in line for Supreme Court appointments in the future. Even more important is the damage these judges can do right now. Janice Rogers Brown, Priscilla Owen, and William Pryor hold views on a range of social issues that are so extreme that all Americans should be terrified to know they will all three soon be in a position to impose those views on real people's lives.

Priscilla Owen was one of the dissenters in a Texas Supreme Court case revolving around the judicial bypass provision in Texas's parental notification law. The Court ended up overturning the decisions of two lower courts, which had denied judicial bypass to a pregnant teenage girl. Judge Owen dissented, making it clear she thought the parental notification law should be interpreted in such a way as to never allow judicial bypasses -- even though the language of the statute did not support that interpretation. Her position was so extreme that even Alberto Gonzales, who was one of the justices on the Texas Supreme Court at the time, disagreed with it.

He said the dissenting justices were reading the Texas bypass provision too narrowly. "To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism," he wrote.

Alabama Attorney General William Pryor, whose nomination to the U.S. Court of Appeals for the 11th circuit the Democrats have agreed to support, opposes abortion even in cases of rape and incest; and he defended extremely brutal treatment of prisoners in Alabama, including "handcuffing a prisoner to a hitching post and denying him clothing, water, and even bathroom breaks." The Supreme Court ruled that such practices violated the Constitution's prohibition against cruel and unusual punishment.

Janice Rogers Brown has the dubious honor of being "one of the most unapologetically ideological nominees of either party in many years," according to an October 30, 2003, editorial in the Washington Post. And not only on the usual issues, like abortion and gay marriage.

In speeches, she has openly embraced the Supreme Court's so-called "Lochner" era, during which the justices struck down numerous worker protection laws on grounds that they violated the supposed right of free contract. Across the spectrum of constitutional law scholarship, there are few points of greater consensus than that this period is a blot on the Supreme Court's history. The very word "Lochner" -- named for the 1905 case that forged the doctrine -- has come to be used as a pejorative shorthand for judicial usurpation of legislative authority. Yet Justice Brown has insisted that without such usurpation, "a democracy is inevitably transformed into a Kleptocracy -- a license to steal, a warrant for oppression."

I don't see how it can be cause for celebration that the best "compromise" Democrats could broker is one that allows these three extreme right-wing fanatics to get a rubber stamp of approval, while the threat to the filibuster is only delayed to another day. It's not enough that Republicans regard the deal as a defeat. It's a measure of how extreme the Republican leadership has become that they DO regard it as a defeat. I don't think that liberals, leftists, and progressives -- however we think of ourselves -- need to define success according to the Republicans' idea of defeat. Likewise, as pleasant as it may be to piss off James Dobson, that in itself is not a good enough reason to jump for joy at a deal that will do serious and even further damage to American democracy and to whatever system of checks and balances we have left.

Having said all this, I think Jeralyn Merritt had the most lucid and insightful analysis of the ones I've seen so far.

All this did was pass the buck to the next congress - yet Democrats are stuck with 3 judges we could have filibustered if we held out. Reid had 49 votes - I think he had the extra two and we would have defeated the nuclear option and Owen, Rogers Brown and Pryor. I think Frist knew it which is why he gave in. You don't think he leaned on the indecisives and made them tell him privately what they were going to do? You don't think they told him, "Don't do this, You can't count on me?"

I don't believe Arlen Specter or John Warner would have voted for the nuclear option. They have been Senators too long and the Senate as an institution is too engrained in them. They, and possibly a few others, care more about preserving their Senate Club than they do anything else. They would not have voted for a rule of order that would have bypassed Senate Rules and 200 years of Senate tradition.

Also, keep in mind, the compromise is is not a bill that passed the Senate, went on to the House, was signed by the President, and became law. This is a piece of paper signed by 14 Senators expressing their commitment to vote a certain way. 86 Senators were not a party to the agreement and are not bound by it. The Senate leaders, Frist and Reid, are not bound by it. Today, these 14 Senators banded together as an oligarchy, and agreed not to change the Senate rules, provided all 100 of them act in good faith. As soon as one believes another has not acted in good faith, he or she is free to re-launch the nuclear option.

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