Nuclear Option: It Ain't Beanbag, People

Well, I've said (most of) this in print, so I guess it can't hurt to blog it. (The article is at 30 Ohio Northern Law Review 235 (2004).)

The Framers intended the appointment process, including that for federal judges, to be political. So it's not the Democrats (or the Republicans) who have politicized the process. It was designed that way. The Framers divided the appointment power to prevent the concentration of power; as a necessary consequence, politics enters into the process. Now, for most of U.S. history, lower court judgeships were essentially patronage jobs, and so there was a low level of conflict over nominations. So the politicization we have seen in the last decade is new, but there's nothing inconsistent with the Framers' vision for the process today. That goes even if we consider the filibuster, which everyone should know was not part of the Framers' design. Once you say that the process is political, then the use of political powers in the process hardly seems to be open to criticism.

Does that mean that the Republican majority shouldn't change the rules and eliminate judicial nominations filibusters? No--that would be political, too. So the Republicans can use their powers to further their agenda. It's just politics, folks. All of the moralistic arguments aside, in a system such as ours, there's nothing wrong with politics. (Personally, I oppose the move, but I'm not going to pretend that my opposition is based on some high-falutin' principles.)

But if Frist succeeds in eliminating judicial filibusters, I think that the Republicans will live to rue the day, as the saying goes. First, I think that this is bad politics for the party as a whole. The gain from changing the rules is not great. At most, it eliminates a (potential) filibuster of a future Supreme Court nomination and puts a few appellate judges on the bench. The costs are potentially much greater. Although the news media keep emphasizing how complicated the story is, there's an easy narrative that the Democrats can tell if this goes through. Here it is: "Changing the rules in the middle of the game." That's one that could hurt the GOP in 2006 and beyond. (Now, the politics here for Frist and a few others are clear, on an individual basis; but the collective gain is rather small.)

Add to this the fact that getting those "moderate" senators to go along will have a cost, too. (That is, if the GOP still engages in logrolling.)

Second, of course, the GOP will not always be the majority party. So the GOP will set a precedent that the Senate minority can be stripped of its prerogatives through simple majoritarian procedures. Not a great idea.

Third, if Frist succeeds, the GOP loses an issue that fires up some members of the base. They might have to actually deliver on something substantive if the Faux News crew loses this perpetual talking point. (This is the same thing with Roe v. Wade. If Roe were overruled tomorrow, what would the Religious Right do with itself? Say goodbye to single issue pro-life voters, folks.) Better to keep the issue of "Democratic obstructionism" than to eliminate it. (This is a cynical point, but we are talking politics here.)

With all that said, my prediction is that the nuclear option will fail.

If Frist had the votes, they would have done this sooner. So there's no guarantee that he has the votes now. And, as the better half suggested to me, you don't schedule a long debate if you already have the votes. My guess is that the leadership thinks that it can get the votes by the time the vote will take place. Maybe, but that's a risky strategy in a body like the Senate. And Frist has never impressed me with his leadership abilities. He's no "Master of the Senate."

The president's influence won't be the decisive factor, either. With his current poll numbers and lame duck status, senators facing re-election at some point won't be swayed one way or the other by the White House.

Plus, I've heard some commentators suggest that Frist wins, in his presidential ambitions, even if the nuclear option fails. I think that's true. (See above.) So it's possible (but not likely) that Frist knows he'll lose, but intends to force the issue to gain the issue for 2008. (I wouldn't put anything past him.)

Update (10 am): The debate has begun. I'm watching Frist's opening speech. Let me just say this speech won't go down in history as a model of senatorial eloquence. If I didn't know better, I'd say Frist was filibustering himself. He keeps repeating the same phrases, over and over again. Or, should I say, "up or down" again and again.