Blame Joe Biden.
Once upon a time, many years ago, Joe Biden labored under the charming delusion that he might someday be elected president of these United States. His ambitions came to nothing — a little less than that, in fact — but in the service of them, he set loose an enormously destructive force in American politics — procedural maximalism — that has hobbled our institutions and set the nation on a course of fundamental governmental dysfunction.
When the definitive history of American politics in the 20th century is written (Get on it, Brookhiser!) the nomination of Robert Bork to the Supreme Court will be understood not as an instance of excessive partisanship but as a transformative event, one equal in significance to the assassination of President John Kennedy or Barry Goldwater’s presidential campaign.
What people remember of that episode is Senator Edward Kennedy’s infamous speech describing “Robert Bork’s America,” “a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”
Kennedy was the showy performer in that ugly spectacle, but Senator Biden, as chairman of the Judiciary Committee, was the stage director. Prior to Bork’s nomination, Biden had in fact said that he would support it: Bork was, after all, a distinguished legal scholar with a long history in public service. Bork had many challenges in front of him: For one thing, he was very sharp-elbowed in intellectual disputes, which had not won him very many friends. The Senate majority leader at the time was Democrat Robert Byrd, a man who had rejoiced in the title of Exalted Cyclops of the Ku Klux Klan, and who held a grudge against Bork for his role in the Watergate scandal, during which Bork had fired special investigator Archibald Cox on the orders of President Richard Nixon. (Plus ça change!) But even in the absence of that history, Bork’s nomination would have run into trouble: Democrats had already announced their intention to resist as a “solid phalanx” the nominations of any “ideological extremist” to the high court, “ideological extremist” meaning any nominee who shared the views of President Ronald Reagan, who was so far outside the mainstream that he had won 49 states in the last election. (Recount Minnesota!)
The Democratic primary field was very full: There was Biden, of course, along with Michael Dukakis, who eventually would win the nomination, as well as Jesse Jackson, Al Gore, Paul Simon . . . and Klansman David Duke, conspiracy kook Lyndon LaRouche, and all-purpose figure of fun James Traficant. Biden could not afford to stand by his earlier assessment of Bork and announced his opposition to the nomination shortly after it was made formal.
Congress is organized under parliamentary rules, and where there are such rules there always will be procedural shenanigans. The filibuster, for example, has not always been used for the most reputable of purposes: The 14 hours Senator Byrd had spent filibustering the Civil Rights Act of 1964 did not prevent him from becoming the Democratic leader in the Senate. The legislative calendar, committee hearings, and such relatively modern innovation as budget reconciliation all have been used in the service of petty politics, which is what politicians do. Complaining about that is like complaining about how wet the water is. But scope and scale and context matter, too. Republican Bob La Follette may very well have been on the wrong side with his 1917 filibuster of a bill that he believed (correctly) would lead the United States to intervene in the Great War, but that was a matter of genuine national and historical consequence. Congress may have erred in abbreviating the usual legislative process to pass the PATRIOT Act, but the sense of urgency was proper and legitimate.
The Bork nomination, on the other hand, was an ordinary piece of government business elevated by Democrats to the status of national emergency in the service of narrow partisan interests. Biden was running for president, Kennedy was running for conscience of the Democratic party, and Byrd, frustrated by Republicans’ lack of cooperation on a number of his spending priorities, had promised: “They’re going to pay. I’m going to hit them where it hurts.” The hysteria and vitriol directed at Bork were of a sort rarely seen since the early 19th century. But they quickly became commonplace.
Democrats of course had every legal and constitutional right to oppose Bork’s nomination for any reason they chose. Senator Kennedy’s denunciation of Bork was pure slander, but not in the legally actionable sense. Elected officials are allowed to get excited about whatever it is that excites them, and, if their constituents strongly disagree, then they have the means of recourse at their disposal. There’s an election every other year.
But the rules of the game are not all there is to the game. What in another context might be called “sportsmanship” is in politics a question of prudence and even of patriotism, forgoing the pursuit of every petty partisan advantage made possible by the formal rules of the legislative and political processes in deference to the fact that governance in a democratic republic requires a very large degree of cooperation and forbearance. The progress from Robert Bork to Merrick Garland is a fairly obvious story, but there is more to it than that: The increasing reliance upon legislative gimmicks such as omnibus spending bills and retrofitting legislation to fit with the budget reconciliation process, the substitution of executive orders and open-ended regulatory portfolios (“the secretary shall . . . ”), the prominence of emergency “special sessions” in the state legislatures, the absence of regular order in the legislative and appropriations process — all are part of the same destructive tendency. Procedural maximalism in effect turns the legislative system against itself, substituting the exception for the rule and treating every ordinary item of business as a potential emergency item.
The rules of the game are not all there is to the game.
The Democrats did not filibuster Bork’s nomination — at the time, their numbers in the Senate were enough to secure their victory without a filibuster. But the course they set in those hearings — one of maximal confrontation, of reaching for whatever procedural cudgel is close at hand — led directly to our current state of governmental dysfunction. As always, judgment matters: One may appreciate that the existence of the filibuster is prudent and desirable without wishing to see it used on every potentially controversial nomination or piece of legislation. It is perfectly acceptable to believe that Robert Bork had the wrong idea about the Constitution, but it is another thing entirely to treat as a national crisis the fact that a judicial nominee has ideas at odds with Joe Biden’s ideas — or with Joe Biden’s ambitions.
The recently proffered Republican health-care bill instantiates much of what is wrong with our politics: The bill was constructed through an extraordinary process in which there were no hearings, no review from the Congressional Budget Office, and no final text of the legislation until shortly before the vote. The process is erratic and covert rather than regular and transparent. It was put together in a purposeful way to avoid substantive debate and meaningful public discourse, making the most of the majority’s procedural advantages for purely political ends. The Republicans are perfectly within their legal authority to proceed that way. But that’s no way to govern. We all know this. As Rod Dreher recently put it, Republicans will have to choose whether they love the rule of law more than they hate the Left. Democrats faced the same choice, once, and they chose poorly, having set upon a course of political totalism that has seen the weaponization of everything from the IRS to the state attorneys general. Republican populists who argue that the GOP must play by the same rules in the name of “winning” have very little understanding of what already has been lost and of what we as a nation stand to lose. The United States will not thrive, economically or otherwise, in a state of permanent emergency.
What’s truly remarkable about our current constant national state of emergency is that no one can say exactly what the emergency is. But we all seem to be very sure that something has to be done about it right now, that we must rouse ourselves to excitement about it, and that the ordinary rules of lawmaking and governance no longer apply. There is not much political mileage to be had from arguing for regular order, transparency, and procedural predictability — but that’s part of what makes those things so valuable. Order in the little things is a necessary precondition of order in the big things. Orderly government cannot be built on a foundation of procedural chaos.
— Kevin D. Williamson is National Review’s roving correspondent.