Still Feeling Filibustrous...

EVENT

Maybe this is a bit of a cop out of an opinion, but I don't see what's so complicated about the solution.

This situation: yes. I certainly agree. In short, the Democrats have been filibustring many of Bush's judicial nominees (significantly, not as many as the Republicans filibustered among Clinton's). (Note: Anyone whose wondering, filibustring is the right to debate any topic without end, essentially making a yes-no vote anywhere from impractical to impossible. Right now, advocates of the filibuster (ie. almost all Democrats) are saying it's a necessary check-and-balance as part of congress, to ensure that a majority party is less capable of stacking the courts. Opponents (ie. almost all Republicans) of the filibuster, say that it is an affront to democratic process, since the majority party is so because of the will of the public, and so should be able to render approval to judicial appointees.

While I think that the filibuster itself it conceptually obnoxious and in realtiy, unwieldy, I think it's absolutely essential to have a check on the power of the majority party to dictate judicial appointees. Also, while I believe this check to be important in principle, regardless of which party is in power, I believe it to be particularly important right now, at a time when the country is closely divided, but one party is inostensibly in control of one branch of government. In short, I am a strong advocate of the filibuster.

To continue the complicated situation: Republicans have become frustrated at the blocking of judicial appointees. There are several possible developments, as outlined by the New York Times.

First, a compromise could be reached. This would have to take the form enough Democrats and Republicans dissenting from their respective party lines so that the democrats would lack the 60% majority needed to maintain a filibuster, and the Republicans would lack the simple majority they would need for the "nuclear option" (see below). The new result of this would be that one or a number of the Bush appointees would slide through on a simple majority, but the filibuster would be left intact as an option later on.

Second, if no compromise is reached, then we enter the "nuclear" scenario. The New York Times outlines this as follows:

If fewer than 60 senators vote to end the filibuster, it would remain in effect. Customarily, that would mean there would be no immediate prospect for a yes-or-no vote on [the candidate].
However, Frist has said he would make a point of order in that case that debate on a Supreme Court or Appeals Court nominee should be limited, in effect negating the ability of Democrats to filibuster.
The Senate's presiding officer -- possibly Vice President Dick Cheney -- would issue a ruling on the point of order. Since the presiding officer in the Republican-controlled Senate is a Republican, the ruling would be the one Frist wanted.
There may be debate on the ruling, but at some point Frist or another Republican would appeal it. This is purely a procedural motion, designed to allow all 100 senators to decide the issue. There may be additional debate, but eventually Frist would propose tabling the motion to appeal.
Under the rules, no debate would be allowed on that proposal.
If a majority sided with Frist, the Senate would have created a new precedent under the rules, and filibusters would no longer be allowed on Supreme Court and Appeals Court nominations. Republicans hold 55 seats, to 44 for the Democrats and one independent. Cheney is allowed to vote in the event of a tie.

The nuclear option is a gamble, and the is largely the premise of my own position on this issue.

THE DEMOCRATS SHOULD NOT COMPROMISE, AGREEING TO PASS BUSH APPOINTMENTS

First, the Republican party this day is perceived as active, robust, and muscular, as opposed to a Democratic party that is always on the retreat, entrenched in big cities surrounded by seas of red. At some point (because this is a democracy), if democrats are to win back the influence they've lost, they're going to have to be seen as willing to fight for their constituencies. While it does appeal to a practical sensibility (especially when one feels besieges) to bet low in the hopes of holding out long, a refusal to takes risks almost guarantees that ground will be lost. A party the gives up their battles one after another, or satisfies for disadvantageous stalemates are going to neither mobilize their base nor capture the imagination of moderates and swing-voters.

And any compromise here could only be read as a disadvantageous stalemate. If the Democrats, representing the just-under-50% of voters who supported them in the most recent election have an obligation to block, by any legitimate means, the appointment of one of the most conservative judges from one of the most conservative federal circuit courts, who has consistently voted in favor of big business and has deplayed the same "judicial activism" that conservatives and president Bush claim to abhor. The Republicans, when they were in the same position with regard to Clinton appointees, blocked and almost identical number as the Democrats are blocking today. And lastly, for the Democrats to bend before the threat of a "nuclear option," is to acknowledge such an option's legitimacy. What's to keep Republicans from utilizing the option whenever an appointee is blocked? Probably some lower level of public tolerance, but should Democrats concede so much of their constituencies interests? Such would be like a union that does not strike: ceremonial resistance. Or to paraphrase Dave Yettaw, you do not deal with a power like the Republican Party from a kneeling position.

Second, the nuclear option itself is irrational and illegitimate.

The fact that such a loophole can become defining on such a pivotal scale (as opposed to the filibuster, which does function more-or-less as it was intended. The filibuster was created precisely as a check against the overweening power of the majority in congress. This was a concern of the founding father, and many simple democracies have foundered over a lack of provision of minority rights. Quite simply, even given the checks-and-balances among the three branches of government, there is naturally nothing from allowing the composition of one to dictate that over another. The filibuster is an additional check to ensure that the policies of the majority are examined rigorously... that they are not simply the default.

Now consider that the filibuster is intended to prevent a simple majority from railroading appointees through a strong minority opposition, and that for this reason, can be ended only through a majority of 60/40. On what planet does it make sense that the institution of the filibuster should be negated by a simple majority? And this is a dangerous precedent... I don't have to give a theoretical argument. The nuclear option would allow the party that occupies the white house and dominates both houses of congress to pass without minority scrutiny appointees consistent with its ideological priorities. In short, to generalize a little, 51% of the country would determine 100% of major levers in the federal government.

Third, we have to play this game long term.

The Democrats shout not derive comfort from the fact that they can still theoretically filibuster (when the public is completely behind them, and when the congressional majority gives them permission). Nor should they derive comfort from the idiotic hope that Republicans will simply keel over and die. There's no good precedent for that either. Democrats have to depend, whether they like it or not, that there is a center of the American public who will be willing to shift their priorities to the Left, and this can only happen when Left asserts its own capable leadership as the right demonstrates over and over again their own inconsistancy.

I'd still describe the tone of America as predominantly conservative, but there are signs that the tide might starting to turn. Nobody, it seems, is a fan of Tom DeLay, even among those who used to support him. Ann Coulter has become as much a focus of derision (or more) for her comments on the gay marriage debate as Michael Moore was for his 9/11 arguments just a year ago. More tellingly, in questions of judicial control and social security reform, Americans have shown reactions from guardedness to alarm, even in the face of soothing lullabies from the president, the vice president, and the nation's most priminent conservative. Didn't everyone think Bill Frist was a really reasonable guy not that long ago.

The Republican Party, as an organization if not a set of beliefs, has been robust this decade. But robustness has led to arrogance and cockiness, and they're starting to come across as a little grasping... as afflicted with tunnel-vision.

The Democrats have to reassert before this. If they do, there is no way they can really damage themselves.

If the Democrats withstand the nuclear option, than they gain in the short and long run, for obvious reasons.

If the Nuclear Option prevails over the nuclear option, than the Democrats lose in the short run but they still gain in the long run, because Republicans publicly establish themselves as "for" and "against" judicial activism, as "for" and "against" local control, as "for" and "against" checks-and-balances. They highlight the inconsistency of their own approach. Americans aren't the most politically conversant beasts, but the gaffes are becoming more and more public.

I don't want the Democrats to buckle or fold.

I don't want the Democrats to bend.

Not tonight.

Even if they stay up all damn night.