Really, you would think the Republicans had proposed to rape the Statue of Liberty. The brummagem moral fanfare imposed on the controversy reminds one of the desperation with which losers will attempt to cope with disappointment at the polls.
It is worth pondering what it is that is being fought over. In the 18th century, England went to war with Spain nudged on by evidence that Spanish guards had defaced a British naval officer. What began as the War of Jenkins’s Ear had a long afterlife in many phases, but the sliced-off ear was the proximate cause of it, and now we are asked to believe that sending Priscilla Owen to the Court of Appeals in New Orleans would be a long stride in the reconfiguration of constitutional arrangements.
Focus on the Ear of this threatened war. It would have been more reassuring if the fight had been over a Robert Bork, a candidate of singular eminence. Judge Owen is not an arresting judicial figure to that degree and has here and there given voice to politically incorrect sentiments.
Still, the relevant focus isn’t on a single nominee. There are ten presidential nominations to the federal appellate courts that were grounded in President Bush’s first term; he has renominated seven of them, including Owen. Attention has now turned to the question of process. The Democrats have long brandished the ultimate weapon of the minority, the filibuster. This is the instrument of the legislative desperado who holds up the entire political establishment, thus frustrating the majority.
Much time has been given in recent days to the potential usefulness of the filibuster. The filibuster may be defined as a means by which a single senator can multiply his strength by ten. As long as the cloture rule prevails, 5l senators cannot act for the Senate. What’s needed is 60 senators–i.e., enough to gainsay a filibuster, ongoing or threatened. The glamorous paradigm of the filibuster is in the movie Mr. Smith Goes to Washington. Here, the young Senator Smith held out against the corrupt majority and vindicated self-government. The late Senator Strom Thurmond has the extra-Hollywood record here, a filibuster that lasted some 24 hours, in behalf of a lost cause, but fortifying the idea that the means to frustrate the simple majority is an ennobling anomaly in the practice of majority rule.
Threat brings on counter-threat, as usual. The announced determination of the Republican majority to vitiate cloture has mobilized the Democrats to say, in effect, that if such a step is taken, they will retaliate by closing down the Senate. Well, not quite closing it down–the experience of Newt Gingrich in closing down government reduced forever the temptation to do so. The threatening senators would not close down that much of their activity as is required to meet financial obligations, but would cease all other work, effectively closing down the legislative branch of government.
Representatives of both sides of the controversy continue to meet, seeking a “compromise.” The compromise being talked about is of two kinds. The first would in effect reduce the authority of the president to name judges, subject always to majority approval. The proposal that a commission reporting to the Senate might come up with a pool of acceptable judges and recommend that the president make his choice from among them, would of course diminish executive authority. Compromise of a second kind would amount to a face-saver. Something on the order of ordaining 100 hours of debate in the Senate chamber before a decisive vote.
An interesting feature in the dispute is that some of the hardliners are former House members, and there the tradition is that the majority exercises the authority of the majority with no shedding of constitutional tears over imperiled or lost traditions. Senator Rick Santorum, for instance, says quite simply: The Constitution requires assent by the Senate for presidential appointments. Well, we are the Senate, and 51 votes control the Senate, and why are we going on so endlessly in this dispute?
Invigorating words. Moreover, the Republican senators tend to dissipate their authority by hesitating to use it. That hesitation, after a while, comes over not as deliberation, but as irresolution. If the nomination of Judge Owen generates irresolution, then let distressed Republican senators just say so–say that they will vote against her. To do that is better than to abandon their responsibility to act as an effective majority.