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Wednesday, May 18, 2005


the nuclear option

via brad delong, josh marshall on the nova of majoritarianism that is about to ensue in the highest refuge of minority rights in america, the united states senate, over judicial nominations:

Whether you call it the 'nuclear option', the 'constitutional option' or whatever other phrase the GOP word-wizards come up with, what "it" actually is is this: the Republican caucus, along with the President of the Senate, Dick Cheney, will find that filibustering judicial nominations is in fact in violation of the constitution.

(Just to be crystal clear, what the senate is about to do is not changing their rules. They are about to find that their existing rules are unconstitutional, thus getting around the established procedures by which senate rules can be changed.)

Their reasoning will be that the federal constitution requires that the president makes such nominations "by and with the Advice and Consent of the Senate" and that that means an up or down vote by the full senate.

Nobody believes that.

Not Dick Cheney, not any member of the Republican Senate caucus.

For that to be true stands not only the simple logic of the constitution, but two hundred years of our constitutional history, on its head. You don't even need to go into the fact that other judicial nominations have been filibustered, or that many others have been prevented from coming to a vote by invocation of various other senate rules, both formal and informal, or that almost countless numbers of presidential nominees of all kinds have simply never made it out of committee. Indeed, the whole senate committee system probably cannot withstand this novel and outlandish interpretation of the constitution, since one of its main functions is to review presidential appointees before passing them on to the full senate.

Quite simply, the senate is empowered by the constitution to enact its own rules.

You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.

For all the chaos and storm caused by this debate, and all that is likely to follow it, don't forget that the all of this will be done by fifty Republican senators quite knowingly invoking a demonstrably false claim of constitutionality to achieve something they couldn't manage by following the rules.

This is about power; and, to them, the rules quite simply mean nothing.
it may indeed be about power for some -- but i fear that it isn't anything so cynical for many, especially in leadership. this is about the manifestation of the ideal, the vitalist ideal, the rousseauian ideal, the romantic ideal, the nietzschean ideal. this is about the emancipation of power, freedom from the tyranny of law, self-enabling will to set the course independent of history or tradition.

very little of it, i fear, has to do with a power grab in the cynical sense. but it is precisely, as marshall says, about the rules meaning nothing -- not as a matter of convenience, but as a matter of the sworn ideology of the emancipation of the will, and all its damning implications for civilization.

senator william ezra jenner, speaking in 1957, as cited by senator robert byrd:

In the past quarter century we have seen a phenomenal growth in the power of the executive branch. If this continues at such a fast pace, our system of checks and balances will be destroyed. One of the main bulwarks against this growing power is free debate in the Senate . . . So long as there is free debate, men of courage and understanding will rise to defend against potential dictators. . .The Senate today is one place where, no matter what else may exist, there is still a chance to be heard, an opportunity to speak, the duty to examine, and the obligation to protect. It is one of the few refuges of democracy. Minorities have an illustrious past, full of suffering, torture, smear, and even death. Jesus Christ was killed by a majority; Columbus was smeared; and Christians have been tortured. Had the United States Senate existed during those trying times, I am sure these people would have found an advocate. Nowhere else can any political, social, or religious group, finding itself under sustained attack, receive a better refuge.
consider what is really being done in the senate chamber over the next few days. it has little or nothing to do with a few forgettable would-be judges; they serve only as a pretext. the real accomplishment of this administration -- and it is the administration behind it -- would be to block the senate's last defense against its own evisceration.

julius caesar used his influence to pack the roman senate under the guise of reform against patrician obstructionism, permanently sidelining it in roman politics and clearing the way for empire. hitler ended the weimar republic with the enabling law, managing to assemble the two-thirds majority needed to pass it in the hysteria that followed the reichstag fire. it is the american protection in checks and balances from this fate that is under attack. if it goes, the united states is separated from despotic tyranny only by some short amount of time.

this is indeed the nuclear option.

UPDATE: it begins.

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