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May 23, 2005

Judges, Filibusters and Conservativism

By Andrew Dobbs

It is very likely that May 24, 2005 will be a day that future generations of Americans will read about in their history classes (assuming they still teach history at that point, an increasingly unlikely prospect). The passage in their textbook will begin with the battle over the filibuster, saying that in from the 1910s to the 1970s opposition to the filibuster was a liberal litmus test. Liberals, a majority of the Congress from the 1930s until the 1970s, saw the act as a way that the Senate's right-wing, often anti-civil rights minority kept socially progressive bills from getting an "up-or-down vote." It will then say that with the divisions of power that began in the 1970s and continued until the 1990s the filibuster became less important and less of an issue for both sides. This consensus ruled until an absolute Republican majority came into power in 2003 and was strengthened by George W. Bush's reelection in 2004 and the minority Democrats (since the 1970s, realigned as an almost exclusively liberal party) began using the process to block judicial nominations to appeals courts. Republicans began threatening to end the practice, and on May 24, 2005 launched what had been termed the "nuclear option"-- the barring of the filibuster for judicial nominees. After Bush had all of his nominees to appeals courts approved on slim up or down votes, Republicans and others began wondering why the process would be needed at all, even for legislative priorities. In 2006, as minority Democrats began resisting Social Security privatization and regressive tax reforms, Republicans managed to end the filibuster for legislation thus ending the Senate's traditional role as a moderating force on the more reactionary elements of the House.

This is a tragedy, and a confusing development as well. The filibuster is a fundamentally conservative institution. The founders of the Senate and its reformers who helped to codify the current filibuster rule in the early part of the 20th century were fearful of government power. They knew that the natural instinct of humanity was towards self-interest and grasps for power and wealth, politicians being the worst culprits in this regard. Thus they divided the powers of government into three coequal branches with checks on one another's power. Still, they knew that the legislative branch was the most likely to become a hotbed of popular passion; close to the people, it could easily be consumed by mob rule. In order to quiet the passions of the heedless masses they divided the legislative branch into two chambers-- a House that would be directly elected and proportioned by population (and thus more susceptible to passionate masses) and a Senate that would be appointed by legislatures, two from each state, and far more deliberative. When establishing the rules of the Senate, the body's founders-- 10 of whom had been delegates to the Constitutional Convention, 4 of whom had signed the Declaration of Independence, including such luminaries as Rufus King, Richard Henry Lee, James Monroe and Samuel Johnston-- developed the idea of unlimited debate. Any member could continue debate indefinitely, thus allowing the body to easily thwart offensive or extreme pieces of legislation. The filibuster required legislation to be mainstream-- if a significant number of Senators were seriously opposed to a measure, it would be blocked. This process kept government power in check for generations, and is part and parcel of the founders' ideals of limited and divided government.

But now the conservatives want to get rid of an institution that promotes classically conservative values. The whole scenario seems odd until you consider the the recent history of American conservativism. American conservativism is a peculiar movement, in that it is essentially the morphing of two diametrically opposed traditions that almost everywhere else in the world form opposite sides of the political divide. Conservativism in the US is essentially the marriage of classical liberalism (which in Europe and elsewhere usually led to the formation of a Liberal Party) and traditionalism (which typically meant a Conservative Party that defended the church, the aristocracy and the crown abroad). The two have managed to work out a nice compact, wherein American conservatives recognize that virtue is the highest public good, but that virtue based on coercion is morally bankrupt. Therefore conservatives enforce strict political liberty and promote traditional values. The process has created a powerful political movement and a series of great leaders-- from Alexander Hamilton and John Calhoun until Robert Taft and Barry Goldwater.

But now the movement is in trouble. Since the late 1970s the traditionalist element of American conservativism has been ascendent. Where the two elements once provided a check on one another (traditionalism trumping the libertinism inherent in lassiez-faire thought, liberalism defeating the paternalistic impulses of traditionslists), the creeping moralism of traditionalists has spread further with each election. With the collapse of the Soviet Union in 1991 the one thing that kept either side from trying too hard to grasp ultimate power-- the united front against communism abroad and leftism at home-- was interrupted. The moralists now had an opportunity to grasp the whole movement for themselves, and the beginning of the War on Terror in 2001 now created a new struggle based not so much on economics and politics (as was the battle against Communism), but rather religion. It became clear that religosity would now be a litmus test of conservativism. Essentially, the libertarian elements of conservativism are being choked off, creating America's first classically conservative party. No more are they interested in checking government power, but rather in promoting traditional social establishment-- the maintenance of class order, the expansion of federal power, the establisment of quasi-official religion and restrictions of discourse in the name of traditional ways of life. As the libertarian-right is further marginalized, the liberal movement in the US is reacting to the movement on the right. Now Democrats have become a traditionally liberal party-- promoting social experimentation, greater autonomy and political involvement and secularism. The divide now defines American politics.

Right wing movements abroad, which have always been predominantly traditionalist, have typically depended on the courts for the promotion of their policy. Iran provides one example (before Republicans start screaming, I'm not comparing the GOP to Iranian Islamists, just saying that Republicans belong on a significantly less extreme part of the traditionalist political spectrum), Francoist Spain another. The lifetime appointments and absolute authority of the courts harken to a more aristocratic and royalist past. Executive authority is of course another element of traditionally conservative government. The end of the judicial filibuster is simply the Senate prostrating itself in front of the power of a mighty executive-- the President-- in his quest to create a traditionalist consensus on our nation's highest courts. The Senate has a plurality of traditionalists, led by Bill Frist, that are moving in this direction even if they don't realize it. The Democrats make up the opposition liberals and a small number of typically American conservative Republicans in the mold of Goldwater and Taft (John McCain, Chuck Hagel, John Warner) make up the third element. Whether the American conservatives decide to listen to the liberal aspects of their philosophy or the traditionalist aspects of it remains to be seen, but their decision will swing tomorrow's action.

With all of this talk of the Senate and larger political movements, it must be remembered that Bush himself is simply doing what Presidents used to do, but have been to timid to do in the face of an increasingly powerful Congress over the course of the last 20-30 years-- appointing daring jurists who stand boldly for the president's ideology. The Supreme Court is a sad example of the timidity of both parties, but particularly Democrats, over the last two decades in the realm of court appointments. Where is the Oliver Wendell Holmes, the Earl Warren, the William O. Douglas or Abe Fortas? The best jurist on the court, despite my personal disagreements with his philosophy, is undeniably Antonin Scalia. If you reflexively disagree with me, I would challenge you to read his opinions (or even better, his dissents). They are magnificently written, tightly reasoned (from a philosophical position, originalism, that I tend to be skeptical of) and intellectually stimulating. They seek to lay down a broad vision of the constitution and a general philosophy of government. While Rhenquist and his compatriots find ways to narrow the streams of thought trickling down from the Court, Scalia seeks to flood the traditions of American government with a downpour of constitutional thought. Yet at one point the Court was full of men like Scalia (and as of yet they have all been men as O'Connor lacks the force and vision, while Ginsburg is closer, but still no cigar), particularly on the liberal side of the equation. Democrats have been gunshy of Congressional approval though, and Clinton chose to nominate bland and short-sighted, if technically qualified candidates. Reagan and Bush I made the same mistakes, though Reagan did nominate Bork and Scalia (both brilliant men that I disagree with) and Bush thought he would be doing well with Thomas, who simply lacks the intellectual power of Scalia. Bush seeks to remake American jurisprudence by putting brilliant, visionary, ideologically serious candidates on the Court. Democrats should do the same thing when they get the opportunity.

In the end, this is a tale of an ongoing tectonic shift in American politics. Party realignment has made dramatic shifts from the mid 1780s until the early 1800s, from the 1820s until the late 1850s, from 1890s until the 1920s and from the 1960s until the 1980s. We are now in the beginning of the latest restructuring, and this realignment has the curious result of taking American politics into a structure that looks remarkably like 19th century European or early 20th century Latin American politics. A nationalist, traditionalist, elitist, classically conservative party is emerging from the ashes of a long-standing conservative consensus; an internationalist, experimental, secular, liberal party has risen from the wreckage of a populist-progressive coalition. The debate is no longer whether government should be expanded or not, but rather if it should be used to strengthen the traditional bastions of the powerful, or to radically rearrange the structure of our society. Both are worrisome, and if May 24, 2005 goes down in history as it appears it will, it will be too late to unring the bell that tolls for the American way of life.

Posted by Andrew Dobbs at May 23, 2005 02:20 PM | TrackBack


Nice work. I saw this on kos, and it was well worth a read.

I take issue, though, with your characterization of Scalia as the best jurist on the court. While it's been a while since I've studied his opinions in detail, there are some that stand out in my memory as masterworks of handwaving.

In one case, he constructed a right to freedom of speech for the federal government. That's right -- a right held, not by the people, but by the government. (I think this was back in the Reagan years, and related to US Customs putting some sort of stamp of disapproval on certain films being imported from Canada.)

In another, also some years ago, he declared that goverment interception of cordless, analog phone broadcasts required no warrant, because it was merely electronic signals, not speech, that was being intercepted. While I might have agreed with the ruling on other grounds, the logic of this one left my jaw on the floor.

A court dominated by the likes of Justices Stevens, Souter, or Breyer would provide far better jurisprudence (let alone be far better guardians of our Constitutional rights) than one dominatde by the likes of Antonin Scalia.

Posted by: Compassionate Conservationist at May 24, 2005 02:09 PM

Like I said, I disagree with him and his jurisprudence is heavily influenced by his ideology-- but that is what makes a good jurist. Name another Justice with as broad a philosophical base, as brilliant a legal mind and as sharp a rhetoric.

Posted by: Andrew Dobbs at May 24, 2005 03:49 PM
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