Since last October, when the Supreme Court made public that William Rehnquist was suffering from thyroid cancer, it’s been plain that the chief justice is firmly ensconced in the Court’s departure lounge—the only question has been when, exactly, Elvis would leave the building. Now we know. With Rehnquist doing his work from home, he seems committed to hanging on until the term ends in June. Then, retirement. And then, as surely as night follows day, a battle over his replacement that’s likely to make the tussles over Robert Bork and Clarence Thomas look almost civilized.
And that, I hasten to add, is Dr. Pangloss’s forecast. For down in Washington, another fight is brewing over the future of the Supreme Court—a fight, in fact, whose consequences, both political and jurisprudential, can’t be overstated. Ever since November 2, Republicans have been threatening a procedural maneuver known in Washington parlance as the “nuclear option”—a change to the rules of the Senate, advanced by Majority Leader Bill Frist, that would effectively bar Democrats from filibustering judicial nominations. And at some point in the next few weeks, they just might push the button.
Though the nuclear option was ostensibly designed to overcome Democratic filibusters of George W. Bush’s appellate-court nominees—twelve of whom he recently, defiantly renominated—it would apply to Supreme Court appointments, too. With Rehnquist on his way out and more justices soon to follow, Republicans, with nothing more than a bare 51-vote majority (as opposed to the 60 needed to halt a filibuster), could confirm anyone they pleased. “I keep saying to people, ‘I know you care about the Supreme Court,’ ” says People for the American Way president Ralph Neas. “But in the next four to eight weeks, there could be a vote that would render moot all the future votes on Supreme Court nominees. The right knows this is its 45-month window to shape the Court for the next 30 to 40 years. If Republicans win on the nuclear option, they could get John Ashcroft confirmed as chief justice, or Pat Robertson.”
For Democrats, opposing the nuclear option tooth and nail is obvious, instinctive, almost a matter of muscle memory. But for the GOP, the issue is already turning out to be a good deal trickier, and in ways that are quite revealing: about the hairline fissures now appearing in the edifice of Republican Party unity; about the difficulties of being a radical party in control of what are, at bottom, fundamentally conservative (in the old-fashioned sense) institutions; and about the challenges of building a stable, lasting political majority while keeping the red-meat-scarfing loyalists who elected you happy and sated.
Among the scarfers, the desire to storm what they see as the last branch of government controlled by the decadent left and pillage at will is ferocious and all-consuming—a point hammered home for me when I flew down to Washington in February for the Conservative Political Action Conference. For more than 30 years, CPAC has been the movement’s revival meeting, attended by several thousand of the most ardent Reaganauts, Falwellians, and dittoheads you could ever hope to meet. This year, they sang in unison, assailing the filibuster rule as an impediment to their counterrevolution.
Here was Rick Santorum, clucking about his hope that Democratic Senate leader Harry Reid “will come to his senses,” but warning that if he doesn’t, Santorum would be “happy to go to the country and say, ‘I’m for the Constitution.’ ” And here was Senator John Cornyn of Texas, a Judiciary Committee member, being roundly cheered for his suggestion that “we shouldn’t call it the nuclear option—we should call it the majority-rule option.”
The substance of the claims made in its favor by the CPAC folks was almost comically thin. The arguments, as best as I can make out, boil down to two: that filibustering to block political appointees is unconstitutional and that the Democratic use of it to thwart Bush’s nominees is wholly unprecedented. The second of these founders on reality: Republicans blocked almost exactly as many of Bill Clinton’s nominees as Democrats have George W. Bush’s. And the first claim founders on consistency: If filibusters are unconstitutional now, they must’ve always been unconstitutional, yet when Republicans were in the minority in the Senate, no one apparently thought to mention it.
The obvious weakness of the Republican arguments is grist for Ralph Neas’s mill. Heavily bankrolled by liberal funders the right would consider borderline satanic, he’s built himself a high-tech war room for the anti-nuclear campaign. He’s also enlisted an A-list cast of Democratic operatives, from former Clinton press secretary Joe Lockhart, media guru Carter Eskew, and pollster John Martilla to a coterie of former Judiciary Committee staffers he dubs the “sons and daughters of the Senate.”
Neas has played a part in the efforts to defeat pretty much every controversial conservative judicial candidate since Bork, including Charles Pickering and Miguel Estrada during the first Bush term. He believes that if Frist does decide to push the button, it will be after a Democratic filibuster of one (or more) of the president’s appellate nominees, and not in conjunction with replacing Rehnquist. “With a Supreme Court nominee, the whole world is watching,” he contends. “They want to do this when as few people as possible are paying attention.”
To win, Neas and the Democrats will need to persuade six Republicans to break ranks. Four moderates, including John McCain, have already publicly declared their opposition; two others, including Chuck Hagel, are perched awkwardly on the fence. And three conservatives have refused to cough up an opinion. Meanwhile, at least one Democrat, Ben Nelson, has voiced dismay over his own party’s use of filibusters against judicial nominees. “It’s too close to call,” Neas admits, “but we’ve just started our lobbying.” Last week alone, he and his people met with fourteen Republican senators in their state offices.
Frist, by contrast, has told the Washington Times he already has the votes. But finding someone who believes him in the capital is like locating WMDs in Baghdad. “If we had 51, we’d have done it yesterday,” concedes a conservative judicial activist. “But we’re getting closer.”
Though Frist would never admit as much—he’d say it’s all about principle—the case he’s making to Republicans is that the nuclear option is a win-win proposition. If they prevail, obviously, it’s a judicial jackpot. But even if they lose, the politics of tagging the Democrats as obstructionists works decidedly in their favor. It’s now an article of faith on the right (albeit one with scant evidence behind it) that Tom Daschle’s defeat in November was due primarily to the filibuster strategy he masterminded. As Cornyn put it at CPAC, “Daschle assumed there was no price to pay, but the people of South Dakota got the message, and they threw him out.”
Were Frist to line up the votes, it would be a powerful show of strength on the part of the Christian right. And a victory here would also allow Frist to bank invaluable political capital for his putative presidential run in 2008. “He’s a moderate in many ways,” notes a Democratic consultant. “But if he delivers this, he’s a hero forever to the right.”
“If Republicans win on the nuclear option, they could get John Ashcroft confirmed as chief justice.”
Similar thoughts are surely racing through the heads of every Senate Republican who thinks himself a potential inheritor of the keys to the White House from Bush. (That is, most of them.) Self-regard? Hubris? Arrogance? That’s the Senate for you. Yet the largest obstacle to Frist’s plan is another aspect of the culture of the place: the belief that the Senate’s traditions are sacred, that it should be an institution where unbridled majoritarianism doesn’t always carry the day. Or, as McCain puts it, “The Senate should not be like the House.”
Even for those of us who’ve wondered if anything would be lost to democracy if the Senate were burned to the ground, McCain is onto something. And for many other “institutional conservatives,” his argument is the essence of reason. “When senators get up in the morning and look in the mirror,” says a longtime Senate aide, “the first thing they say—after ‘I should be president’—is ‘Thank Christ I’m not in the House.’ ”
In the end, I suspect such views are likely to prove both stubborn and influential. As the prospect of actually dropping the bomb becomes more real, there are signs of Republican nervousness the plan might backfire. In an interview last week, Arlen Specter was speaking, I reckon, for many of his colleagues when he said, “If we go to the nuclear option … the Senate will be in turmoil and the Judiciary Committee will be hell.”
Whatever the final fate of the nuclear option, however, the debate over the measure has already illuminated two points.
First: A party that seriously considers, let alone achieves, the demolition of a 200-year-old Senate tradition for essentially political ends cannot properly be called conservative. As Newt Gingrich always honestly advertised, the GOP is now a radical party, in the strictest sense of the term. But being radical, as Gingrich learned to his regret, demands a degree of ideological purity that makes governing damn hard. It also has a tendency to lead to overreaching.
Second: The fact that enacting the nuclear option has not (yet) been a slam dunk for Republicans, despite the implicit backing of the White House, is one of a number of signs that the vaunted party cohesion that characterized Bush’s first term may be on the wane. On Social Security, the budget, and even taxes, there have been more Republican yowls of discontent and disagreement in the first two months of Bush’s second term than anyone could have predicted. And most of them are emanating directly from the halls of the upper chamber.
I’ll say it again: That’s the Senate for you. Pompous, windy, prone to pettifoggery—and maybe, just maybe, more of a pain in Bush’s ass than either he or Rove bargained for. Here’s hoping.