Conservatism In Theory And Practice

by hilzoy

According to Merriam-Webster, 'conservatism' means:

1 capitalized a : the principles and policies of a Conservative party b : the Conservative party
2 a : disposition in politics to preserve what is established b : a political philosophy based on tradition and social stability, stressing established institutions, and preferring gradual development to abrupt change
3 : the tendency to prefer an existing or traditional situation to change

This is a view I can respect, even when I disagree with it. Changing institutions can often have large unintended consequences, and a generally cautious attitude towards changing them often makes sense to me. To quote a passage from Chesterton that Sebastian cited recently:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

So why aren't more Republicans taking a conservative position on the nuclear option?

The various rules securing a voice for the minority party in judicial appointments are "gates" of the kind Chesterton refers to. Most of them have been done away with in the last two years. In some cases, like blue slips, I do not regret their passing. But I think it was wrong to override Rule IV of the Judiciary Committee, which holds that no nominee may be reported out of committee without at least one minority vote, since this rule requires the majority party to find candidates who are acceptable to at least one member of the minority. And it is wrong, as I have argued, to talk about the unprecedented nature of the Democrats' filibusters without taking into account the fact that every other means of blocking judicial nominees has been stripped away in the past few years.

The filibuster is a larger gate, one that I would think any conservative would hesitate before removing. It has been used to prop up injustice, and to delay necessary reform. But it has also served as a brake on temporarily popular measures that came to seem, with time, to be misguided. I would support reforming the filibuster. I would certainly support requiring Senators to actually go on speaking as long as needed in order to filibuster. With respect to legislation, I think it would be worth considering some provision whereby legislation introduced in successive sessions of Congress required smaller numbers of votes each time they were reintroduced, until eventually they could be passed by a bare majority. This would make it less likely that legislation whose support was fleeting, but to which a large minority was vehemently opposed, would be passed; while precluding a minority's using the filibuster year after year to obstruct legislation with lasting majority support. (Note: Mark Schmitt has a very interesting piece, "What I Learned About Filibusters From Writing One", on the indirect effects that filibusters can have. Worth reading.)

The case for a filibuster seems to me strongest in the case of judicial nominees. They are appointed for life. They have a lot of power. (Sebastian may say that they should not use that power, and I would agree with him, but they surely have it.) They should be thoughtful people, the sort who would attract support across party lines. (And since most of Bush's nominees have passed, in many cases with considerable Democratic support, I do not accept the claim that it would be impossible to find such nominees at present.) In any case, however, I would have thought that changing the rules to eliminate the possibility of a filibuster would be just the sort of 'reform' conservatives would regard with skepticism.

On all of these points, however, I can see how a conservative might end up advocating a change. What I cannot understand, however, is how any genuine conservative could support making this change by breaking the Senate rules. Again, here is what the majority proposes to do:

Either: the Democrats will filibuster; the Republicans will challenge the cloture rule (the one that says you need 60 votes to close discussion) as unconstitutional; the Vice President, in his capacity as President of the Senate, will rule that it is unconstitutional, the Democrats will appeal, the Republicans will move to table the appeal, and if they can get the 51 votes that a motion to table requires, the appeal will be set aside and the rule will be declared unconstitutional;

Or: A similar process will ensue, but the claim about the unconstitutionality of the cloture rule will be replaced by the claim that each session of the Senate is entitled to adopt its own rules by majority vote. Then the Vice President will uphold this claim, the Democrats will appeal, the Republicans will move to table the appeal, and if they have the requisite 51 votes, they will prevail.

Either of these options will involve the following things, all of which are both bad in their own right and, I would have thought, especially odious to conservatives:

* The rules of the Senate, and in particular its rules about how those rules are to be changed, will be simply set aside. The rules specifically state that they continue in effect from one session of the Senate to the next, that they can be changed only in accordance with the procedures they provide, and that debate on a motion to change them can be closed only by a vote of two thirds of the Senators. If the Republicans go for the nuclear option, they will be completely disregarding these rules. For more information on exactly how many rules and precedents they will need to ignore, see The Next Hurrah's series of 'Notes on the Nuclear Option', here.

* The Vice President will have to declare himself on a constitutional question which will alter the ways in which the Senate does business; and his ruling is likely to be exempt from judicial review. This, to my mind, raises serious questions about the separation of powers.

* Moreover, the Vice President will make his ruling not on the basis of his considered views about the Constitution, but to gain a partisan victory. The Vice President seemed to think filibusters were fine back in 1991:

"Faced with a close vote, Senate Republicans intimated that they would launch a filibuster rather than lose a vote in the whole Senate. Quizzed on the subject on the MacNeil/Lehrer Newshour, Cheney made it clear that he had no problem with a filibuster, saying that it would be better to have no vote at all than have a defeat."

Possibly his views have changed since then. On the other hand, since Cheney is an intelligent man, and since the case that the Senate's cloture rule is unconstitutional is virtually nonexistent, perhaps not. In which case, he is treating the Constitution, his oath to support it, the general requirement that this country function under it, and his honor, as trifles that can be swept aside when they stand in the way of some aim that he and his party want to achieve.

* Finally, the Senate will have to vote to uphold Cheney's ruling. Many of the Senators who have announced their intention to vote for the nuclear option have previously stated that they do not believe that filibustering judicial nominees is unconstitutional, or have said things that would make no sense unless they thought so. To cite two:

• On May 18, when Bill Frist was asked about his own participation in an attempt to filibuster a judicial nominee, he said: "The issue is not cloture votes per se, it’s the partisan, leadership-led use of cloture votes to kill - to defeat - to assassinate these nominees. That’s the difference. Cloture has been used in the past on this floor to postpone, to get more info, to ask further questions." If Frist believes that requiring 60 votes for cloture on judicial appointments is unconstitutional, then he must believe it's unconstitutional all the time, not just when it's partisan. Conversely, if, according to Frist, the problem with these filibusters is that they are partisan, then he cannot believe that they are unconstitutional.


• Rick Santorum, shortly before he compared Democrats to Nazis, said this: "Those in 2003 had the right to filibuster judges. I had the right, during the Clinton administration, to filibuster his appointments." His point is that, showing restraint, he did not do so. But if he actually believes that the cloture rule is unconstitutional, then he cannot believe that he or anyone else had such a right.

As before, the Senators who vote on whether to uphold the Vice President's rulings on the Constitution will not be voting for or against some legislative proposal. They will be voting about what the Constitution says, and what the rules of the Senate are. And they will be voting to uphold interpretations of these rules and that Constitution, which they have vowed to support, in ways that many of them simply do not believe are accurate. To quote Josh Marshall:

"Their reasoning will be that the federal constitution requires that the president makes such nominations "by and with the Advice and Consent of the Senate" and that that means an up or down vote by the full senate.

Nobody believes that.

Not Dick Cheney, not any member of the Republican Senate caucus.

For that to be true stands not only the simple logic of the constitution, but two hundred years of our constitutional history, on its head. You don't even need to go into the fact that other judicial nominations have been filibustered, or that many others have been prevented from coming to a vote by invocation of various other senate rules, both formal and informal, or that almost countless numbers of presidential nominees of all kinds have simply never made it out of committee. Indeed, the whole senate committee system probably cannot withstand this novel and outlandish interpretation of the constitution, since one of its main functions is to review presidential appointees before passing them on to the full senate.

Quite simply, the senate is empowered by the constitution to enact its own rules.

You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.

For all the chaos and storm caused by this debate, and all that is likely to follow it, don't forget that the all of this will be done by fifty Republican senators quite knowingly invoking a demonstrably false claim of constitutionality to achieve something they couldn't manage by following the rules.

This is about power; and, to them, the rules quite simply mean nothing."

I do not understand why people who regard themselves as conservative can look at this pure power grab, in which the Republican majority tries not just to remove a tradition of long standing, but to toss aside the rules of the Senate, willfully misinterpret the Constitution, vote that that interpretation is correct when they do not believe it, and thereby show that their word and their honor mean nothing, and not be appalled. If conservatism means anything good, it means respecting existing institutions, not trashing them; playing by the rules, not breaking them as soon as you can get away with it; and sticking to ideas like honor and respect when they are neither popular nor profitable. What the Republican majority is about to try to do is not conservative in any sense I recognize. It's just wrong.

Still, this might be understandable if the stakes were high enough: if, for instance, it were the only way to eliminate slavery. But for Priscilla Owen (pdf), who just received the worst ratings (pdf) given by the Houston Bar Association to any member of the Supreme Court of Texas? (She did particularly badly in two categories: "Opinions demonstrate well reasoned, clearly-written disposition of the case based on proper application of the law to the record?", and "Is impartial and open-minded with respect to determining the legal issues?") I can't imagine in what possible world appointing her to the 5th Circuit Court of Appeals could be worth this amount of damage, or why conservatives, of all people, should be willing to inflict it.

Comments

[Andrew C.]

Excellent post. I've been becoming more and more conservative in recent years, yet more and more committed to voting against Republicans. The party is not conservative in any meaningful sense. Breaking the filibuster is a terrible precedent, one which will come back to haunt the GOP.

I fear that we'll have to go quite far down the path of power at any cost before the consequences become so severe that reasonable checks and balances are restored.

[c matt]

Why haven't Republicans been more conservative on the nuclear option?

Because, if it has not become obvious, Republicans are not necessarily conservatives.

[Anarch]

Excellent post as always. To repeat something I've said before by way of amplifying what you said above:

I would support reforming the filibuster. I would certainly support requiring Senators to actually go on speaking as long as needed in order to filibuster.

I whole-heartedly agree. To my view, the filibuster is a trade-off: the Senators engaged in the filibuster deliberately set themselves up to look foolish -- whether by explicitly reading the phone book or opening themselves up to split-screen (as per one of Sebastian's asides) or whatever -- and gain in recompense the ability to halt, and possibly even kill, legislation they feel strongly about.

It's the public nature of the filibuster, though, that is the trade-off. If they make themselves look too stupid (or, in general, snarl government up too much) relative the importance their constituents place on the issue, this will hurt them at the ballot box in the next election. Conversely, if their constituents are glad that the legislation* was stopped, their forgiveness will again be shown at the ballot box. The essential nature of this balance is that it must be public and made commonly available to the constituents who will vote for or against the Senators in question.

Phrased like that, yes, the filibuster can still be used to prop up injustice and delay necessary reform... but if the Senatorial representatives of 41% of the population of the United States** are willing to humiliate themselves in such a fashion in order to stop the legislation from passing, it strongly suggests that that changes need to be made in order to make it more acceptable to the American people.

It's not majoritarian. It is, in fact, explicitly anti-majoritarian. Then again, so is the Senate; and I see the filibuster merely as part of that function of that branch of government.

[As an aside, I also support dropping nomination filibusters from now on in return for flat-out requiring 60 votes for all lifetime appointments. It's quicker, cleaner and (I think) will both prevent a lot of these red-meat nominations and ensure a greater level of comity in the Senate, as well as the more obvious perk of guaranteeing that lifetime appointments will be more palatable to the American people as a whole.]

* Begging the question somewhat, I'm going use the word "legislation" as a proxy for "business of the Senate, including legislation, nominations and the like." I'll be happy to address the distinction -- or, more accurately, why I don't see a distinction in this context -- downthread.

** Yes, yes, I know. Just grant me the rhetorical license here, ok?

[xanax]

If conservatism means anything good, it means respecting existing institutions, not trashing them; playing by the rules, not breaking them as soon as you can get away with it; and sticking to ideas like honor and respect when they are neither popular nor profitable.

Elegant, hilzoy. Another remarkable post but, sadly, not likely to persuade... remember, you're dealing with neocons, not with Conservatives.

[xanax]

If conservatism means anything good, it means respecting existing institutions, not trashing them; playing by the rules, not breaking them as soon as you can get away with it; and sticking to ideas like honor and respect when they are neither popular nor profitable.

Elegant, hilzoy. Another remarkable post but, sadly, not likely to persuade... remember, you're dealing with neocons, not with Conservatives.

[c matt]

Of course, Democrats have brought this on themselves. Having packed the court with ideologues at every opportunity, (spineless Republicans also to blame), they now want to complain about "conservative" judges, which we all know is a code word for those who don't support the unfettered right to abortion. The most conservative of judges sought to be appointed would, at most, return the issue of abortion to state legislatures (along with many other issues that properly belong there). A filibuster by Dems, if played right by the Reps (no guarantee), would earn the Reps back some of the capital they wasted on stupid things like the bankruptcy reform and inaction on immigration. Maybe that is the plan.

As for the Houston Bar Association ratings, that group is so political, I would not take their "ratings" too seriously (many probably did not know who Owens is). I say this as a dues paying member of said group. And look at some of the questions - impartial and open minded when determining the legal issues? Please, what judge at that level is? They are not supposed to be open-minded - they are supposed to know and follow the law. You could hardly call ANY of our current SCOTUS justices open minded (uninformed, mentally deranged, flat-out stupid, maybe - but certainly not open-minded or impartial).

[praktike]

I know that this (excellent) essay requires you to be coy about whether Republicans or conservative or not, but let's cut to that chase: they aren't, at least in an way that matters at this point. The party out of power, it seems to me, inevitably becomes the conservative party, while the party in power inevitably becomes the activist party.

[DaveC]

Danger Will Robinson! hilzoy is a corrupting influence: look what she has done to John Cole ;^)

[Anarch]

Having packed the court with ideologues at every opportunity, (spineless Republicans also to blame), they now want to complain about "conservative" judges...

FTR, Dwight Meredith has crunched the numbers -- I'll see if I can scrounge up a link -- showing that Republicans have actually nominated more judges to the SCOTUS, the Appellate Courts and the Circuit Courts than the Democrats, at least amongst those still serving. [I believe that figure includes GWB's 190+ nominations, which once again seems to have slipped from memory.] This isn't conclusive proof one way or the other, but it strongly argues against the notion that The Democrats "ideologue-packing" (even assuming arguendo the truth of that statement) was particularly meaningful.

[bob mcmanus]

"I can't imagine in what possible world appointing her to the 5th Circuit Court of Appeals could be worth this amount of damage"

Well, if I am not mistaken, Rogers Brown on the 9th circuit, ruling on regulative matters, could be worth billions, tens of billions of dollars to business and industry. Owen on the 5th circuit might possibly encounter oil industry cases, eg EPA vs off-shore drilling.

Cheney rules.

Other than simple corruption, the level of determination and fearlessness involved in resubmitting these nominations and refusing to lose, no matter the cost, I do believe has a real effect on those who would oppose, or support weakly, this leadership.

I know they scare the hell out of me.

[hilzoy]

praktike: I think some Republicans are conservative, and some aren't. Things seem to take time to sink in -- I suspect that we are now over the idea that the GOP is the party of fiscal conservatism, but we are now at least 13 years past the point when that stopped being true. For myself, I think that during the 90s, the radical wing of the Republican party gradually gained complete dominance over its conservative wing, and to me, the Democrats seem to be obviously more conservative, in the original 'cautious' sense, than the Republicans.

[Gary Farber]

Two points: Santorum was first elected to the Senate in 1994, being sworn into office to the 104th Congress, in which the Majority was led by the Republicans, and Senate Majority Leader Bob Dole. Unsurprisingly, yes, he never had to filibuster against his own party. How restrained!

Two: "...to talk about the unprecedented nature of the Democrats' filibusters without taking into account the fact that every other means of blocking judicial nominees has been stripped away in the past few years."

Or the fact that it's a straight lie to claim that Republicans weren't filibustering judicial nominees. This claim shouldn't be accepted, but must be refuted . Lie, lie, lie. Anyone here who claims it hereafter is lying.

[hilzoy]

Oops, didn't finish that thought: I just don't know when the fact of their radicalism will become clear to most people. I think that we may now be in the period corresponding to the Democrats' 1968.

[hilzoy]

No italics!

[Anarch]

Italics begone.

Breaking news: Senate sources tell AP there is a deal to avert showdown on judges. -. No idea yet what that deal will be (beyond the obvious).

[Gary Farber]

Oops.

[Anarch]

Owen on the 5th circuit might possibly encounter oil industry cases, eg EPA vs off-shore drilling.

Wampum has a post up querying Owen's ties to Eli Lilly. No clue about the subtance behind the charges, though; this is way beyond my ken. Anyone with expertise want to comment?

[Anarch]

CNN is showing the press conference. Susan Collins was up a few moments ago; Lindsey Graham is on right now.

[Anarch]

Pryor, Owen and Rogers Brown appear to be getting cloture here. No word yet on the others.

[praktike]

AP story says Owens but nothing on Brown. McCain seems to have outgunned Frist.

[Gary Farber]

"...remember, you're dealing with neocons, not with Conservatives."

This is difficult to sustain. People like Santorum, Frist, Lott, and onwards, aren't neo-conservatives in any remotely meaningful use of the word. This is epithetic to no point. It's reducing "neo-conservative" simply to being interchangeable with "bad." Here's a list of Senators; I'm not sure a single one could sensibly be called a "neo-con." If so, who?

[Gary Farber]

"Of course, Democrats have brought this on themselves. Having packed the court with ideologues at every opportunity...."

Apparently by hynotic control over Republican Presidents, since it's an irrefutable fact that the overwhelming majority of U.S. Federal judges were appointed by them. Damn Richard Nixon, Gerald Ford, Ronald Reagan, George H. W. Bush, and George W. Bush for their fanatic liberalism!

[xanax]

Hell, hilzoy, maybe you hit on something important in your 7:49 post. Perhaps for their 2008 "go-forward" political re-positioning Democrats should start referring to themselves as conservatives and Rs as radicals.

[Anarch]

On the judicial numbers, here's Dwight Meredith's post from last year. He's broken it down further elsewhere; still digging.

praktike: I got my info from the CNN Senate correspondent. He was incredibly unclear about what, exactly, the compromise was going to entail; I suspect this story's gonna morph multiple times before it settles.

[praktike]

14 senators (7+7) at the press conference with McCain, but no details as of yet.

Maybe these guys can now break off and start a centrist party that I can vote for; I'm sick of these other folks.

[Gary Farber]

"The most conservative of judges sought to be appointed would, at most, return the issue of abortion to state legislatures (along with many other issues that properly belong there)."

Like Priscilla Owen ruled on parental notification of abortion, going against the legistative language to the point of being so blatant that wacko liberal Attorney-General Alberto Gonzalez called it a ""an unconscionable act of judicial activism"? First what we need to do is get out of office any President who would nominate such a crazy Attorney-General, and all the liberal Senators who voted for him, right?

The liberal conspiracy is more sweeping and insidious than you realize!

[washerdreyer]

Let me the first to make a very tasteless joke, and then probably get banned: This compromise is worse than Yalta.

[Anarch]

Aha! Found the source for all these numbers: the Alliance for Justice judicial database. I'm assuming that the data there are all solid regardless of whatever politics the AFJ might have; anyway, I'm sure there are other databases out there.

Incidentally: it's now confirmed that Brown, Pryor and Owen are getting cloture and hence up-or-down votes, as thus spake Frist on the Senate floor. Harry Reid was slick but impressive (in that pompous "I'm speaking for the American people way" that I detest but which most people seem to lap up) in his speech. Frist was, well, blatantly hypocritical about the delay -- as if Paez had never existed or something -- but hey, it's his right and due. I'm still trying to figure out what the heck the Dems got out of this deal, though; I think we're not going to find out until the votes go down on the three who were let through.

[Incidentally, Reid has maintained the line on the filibuster for the other nominees, Saad (?) in particular. We'll see how that pans out.]

[Gary Farber]

Thanks for the link to Meredith, Anarch, but he gets one thing wrong here: "Conservatives have been complaining for half a century that liberal, activist judges on the Federal bench are laying waste to the values that conservatives hold dear."

No, they've been doing it since 1937, actually, to be specific. It didn't magically start happening in the middle of Eisenhower's term. (Perhaps I'm being too literal again.)

[xanax]

Gary Farber - re: neocons. I don't use neocon interchangeably with "bad" as you suggest. I do, however, use it (more loosely than may be spot-on accurate) to generalize those who appear to march pretty much in lock-step with GWB. Frist, Lott and Santorum certainly qualify on that score.

[xanax]

Gary Farber - re: neocons. I don't use neocon interchangeably with "bad" as you suggest. I do, however, use it (more loosely than may be spot-on accurate) to generalize those who appear to march pretty much in lock-step with GWB. Frist, Lott and Santorum certainly qualify on that score.

[praktike]

whither Brown? She's the one I'm most concerned about.

[Anarch]

whither Brown? She's the one I'm most concerned about.

Like I said: up-or-down on Pryor, Brown and Owen. The Corner (specifically K-Lo) claims to have the actual text of the deal here.

[Anarch]

So a quick stroll around the blogosphere confirms what I was expecting: the die-hards on both sides are pissed off, the moderates and centrists are trying to figure out wtf just happened. As am I. Any ideas?

[Anarch]

No, they've been doing it since 1937, actually, to be specific. It didn't magically start happening in the middle of Eisenhower's term. (Perhaps I'm being too literal again.)

Do you see a continuity in claims of "liberal, activist judges" as far as 1937? My understanding was that most of those complaints had ceased in the 1940s, only to be revived anew by Brown v. Board (which is presumably what Dwight was referring to).

[Gary Farber]

"I do, however, use it (more loosely than may be spot-on accurate) to generalize those who appear to march pretty much in lock-step with GWB."

I apologize for being blunt, but as I said: reductive to the point of meaninglessness. What the heck, let's forget political "theory." It's too boring. Let's forget any difference between paleocons, cons, and neocons. Let's forget Shachtman, Strauss, and Trotsky. Let's forget letting words have meaning. If you support George W. Bush, you're a "neocon." And if you support a Democrat, you're a "commie." (Note: this may not be fully "spot-on accurate," but let's say it anyway.)

That helps us think better. And political discourse is uplifted and clearer for all.

[praktike]

I think the Senate moderates are seeing this as a way to shift power back to them. That's what I see this self-congratultion is all about (Schumer, Warner, Durbin on CSPAN right now). It's basically a big FU to the groups and to the WH.

[xanax]

How about theocons?

[xanax]

How about theocons?

[Gary Farber]

"Do you see a continuity in claims of 'liberal, activist judges' as far as 1937?

Abso-frigging-lutely. Though I'll back down a bit.

"My understanding was that most of those complaints had ceased in the 1940s, only to be revived anew by Brown v. Board (which is presumably what Dwight was referring to)."

I don't desire to embark on a lecture trip through 1940's and 1950's Republicans, but: not to the point I'd start in '54. They didn't use much of the present terminology, but they certainly didn't surrender their complaints about what SCOTUS let FDR, Truman, and Eisenhower do, albeit I grant that the primary focus of hatred was at the Executive Branch. And backing up a bit, I'm not saying it's completely unreasonable, or anything so strong, as to point to Brown, but the roots are in '37, I'd say, and neither earlier nor later. But there's a fair case to argue '54, fair enough. I just don't want to see the politics of 1937-54 forgotten. (And it's not exactly hard to find innumerable conservatives who will agree with me, and point to FDR as the Root Of All Evil, of course.)

[xanax]

Sorry again again again for the double posts. Don't know what gives. Mac gremlins.

[bob mcmanus]

"It's basically a big FU to the groups and to the WH."

And what has the WH lost? They'll sacrifice Bolton to make tho moderates look like something was achieved, but Rogers on the 9th is unacceptable.

And any compromise disappears with a SCOTUS nomination.

I knew Reid was worthless.

[praktike]

Ah, Wayne Allard likes Owen because she, like him, was a veternarian.

[praktike]

god, allard is such a wanker. Still talking about "up or down" bla bla bla bla and lying through his teeth. What a wanker. Wanker wanker wanker.

[lily]

Myers/Miles (can't remember names) is the one I loathe. . He says the Endangered Species Act is unconstitutinal. I hate him.

[Gary Farber]

Ah, I've found that Janice Rogers Brown agrees with me:

Brown has denounced President Franklin Roosevelt's Supreme Court as transforming the Constitution into a "significantly different document," and the Democratic New Deal as the triumph of "our own socialist revolution."

And, incidentally:

Republican Gov. Pete Wilson appointed her his legal affairs secretary, and then to a seat on the state Court of Appeals in 1994. The legal establishment was unimpressed, though, and prior to her appointment she received a "not qualified" rating from the American Bar Association.

Sheer politics and jealousy, of course.

[praktike]

oops, it says nuclear option won't be used in the 109th Congress. Hmmm.

[Gary Farber]

"god, allard is such a wanker. Still talking about "up or down" bla bla bla bla and lying through his teeth. What a wanker. Wanker wanker wanker."

Yep. Given this past election's results in electing Salazar, and Democratic control of both Colorado's Senate and House, for the first time in my lifetime, though, there's a fair chance of tossing him next time (although attention is also focused on the Governor's seat). Don't look to me for any special insight into Colorado politics, though. See Coloradoluis, or Colorado Politics, as a rule.

And now I go watch 24.

[hilzoy]

Gary: if you haven't read the "our own socialist revolution" speech, it's here.

"It was a quite opposite notion of humanity, of its fundamental nature and capacities, that animated the great concurrent event in the West in 1789 — the revolution in France. Out of that revolutionary holocaust — intellectually an improbable melding of Rousseau with Descartes — the powerful notion of abstract human rights was born. At the risk of being skewered by historians of ideas, I want to suggest that the belief in and the impulse toward human perfection, at least in the political life of a nation, is an idea whose arc can be traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937. The latter date marks the triumph of our own socialist revolution. All of these events were manifestations of a particularly skewed view of human nature and the nature of human reason. To the extent the Enlightenment sought to substitute the paradigm of reason for faith, custom or tradition, it failed to provide rational explanation of the significance of human life. It thus led, in a sort of ultimate irony, to the repudiation of reason and to a full-fledged flight from truth — what Revel describes as "an almost pathological indifference to the truth." "

Also the speech in which she makes this bizarre claim:

"Lionel Tiger, in a provocative new book called The Decline of Males, posits a brilliant and disturbing new paradigm. He notes we used to think of a family as a man, a woman, and a child. Now, a remarkable new family pattern has emerged which he labels "bureaugamy." A new trinity: a woman, a child, and a bureaucrat."28 Professor Tiger contends that most, if not all, of the gender gap that elected Bill Clinton to a second term in 1996 is explained by this phenomenon. According to Tiger, women moved in overwhelming numbers to the Democratic party as the party most likely to implement policies and programs which will support these new reproductive strategies."

[Gary Farber]

"Myers/Miles (can't remember names) is the one I loathe. ."

The only current Senators with names starting with "M" are Mel Martinez (R-FL), John McCain (R-AZ), Mitch McConnell (R-KY), Barbara Mikulski (D-MD), Lisa Murkowski (R-AK), and Patty Murray (D-WA). (Equal number of women to men, yay.)

[Gary Farber]

Thanks muchly for the link, Hilzoy. I'll agree with her on one thing: the French Revolution didn't work out well.

Also, we probably both drink water.

[Anarch]

I just don't want to see the politics of 1937-54 forgotten.

Sadly, I don't think I can forget them because I never really learned them. Wasn't there like a war or something in there?

(And it's not exactly hard to find innumerable conservatives who will agree with me, and point to FDR as the Root Of All Evil, of course.)

Well yes, but false claims of continuity are nothing new. Just ask the Chinese.

[KCinDC]

Gary, I assume she's referring to William Myers, the judicial nominee. It's not as important what a senator considers unconstitutional, unless we're talking about the Endangered Species Act influencing the senator's view of the nuclear option.

[Anarch]

praktike: I think the Senate moderates are seeing this as a way to shift power back to them. That's what I see this self-congratultion is all about (Schumer, Warner, Durbin on CSPAN right now). It's basically a big FU to the groups and to the WH.

I'm not disputing that but... umm... how is giving those three justices a vote a victory for moderation? This sounds suspiciously like that stupid notion of "centrism" (or, in this case, "independence") being defined as the midpoint between the two loudest poles, irrespective of where those poles happen to line up.

[hilzoy]

Kevin Drum says that someone in comments says that one of the three who will get an up or down vote will be "defeated on a bipartisan basis." Please, please, please let it be Brown...

Though frankly, any of them will do.

[Anarch]

BTW? Chris Mathews?

WAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAANKEEEER!

[Anarch]

Hmph.

KEEEEEEER!

[hilzoy]

Sorry, hit post too quick: that someone says that Lindsay Graham has said...

Obviously, what Graham says carries a bit more weight.

[hilzoy]

Anarch???

[Gary Farber]

"I'm not disputing that but... umm... how is giving those three justices a vote a victory for moderation?"

I have no opinion about this as yet, but my immediate return question would have to be "what was the practical alternative"? If it meant the elimination of the judicial filibuster, including for the expected SCOTUS nominee(s) after the term ends June 27th, would that be a victory?

Armistice is sometimes the only dish on the menu.

[Gary Farber]

Here:

Under the accord, announced in a hastily called Capitol news conference, the 14 senators pledged to vote to end prolonged debate on three of President Bush's most disputed appellate court nominees: Priscilla R. Owen of Texas, Janice Rogers Brown of California and William H. Pryor of Arkansas.

The 14 senators made "no commitment to vote for or against" the filibuster against two other nominees, Henry Saad and William Myers, Mr. McCain said.

The 14 senators who forged the compromise included, on the Republican side, Mr. McCain, Mr. Graham, John Warner, Olympia Snowe, Susan Collins, Mike DeWine and Lincoln Chafee, and on the Democratic side, Mr. Lieberman, Mr. Byrd, Ben Nelson, Mary Landrieu, Daniel Inouye, Mark Pryor and Ken Salazar.

[CharleyCarp]

I really didn't think they'd get a deal, because I didn't think the Republicans in the moderate group could agree to anything that would allow a filibuster of an SC nomination. I guess there's enough anger at WH and Frist arrogance on their own side to have gotten to this.

GWB can easily send up a nominee that meets the 'extraordinary circumstances' test, and so long as the Republican signatories believe that 4 of the 7 Dem signatories have reached that determination in good faith, the nomination will be blocked.

The question is whether the President will intentionally try to draw a filibuster, so he can blame Dem and Republican moderates. It seems to me that it would be perfectly in character for him to do so.

[david Sucher]

"I've been becoming more and more conservative in recent years, yet more and more committed to voting against Republicans. The party is not conservative in any meaningful sense."

I like that.

[Gary Farber]

"I guess there's enough anger at WH and Frist arrogance on their own side to have gotten to this."

I'm doubtful that's a primary motivation for at least most; I'm inclined to put it down to more of a combination of sense about maintaining Senate perogatives for the future, the knowledge that lack of a filibuster would, someday, come back to bit them on the ass, and some fear of the unknown in regard to where this was going, as well as some healthy fear of the known consequences. But I could be wrong.

[Anarch]

hilzoy: Anarch???

Yeeeees?

Or are you disputing that Chris Mathews is, indeed, a wanker?

Gary: Kevin Drum's got a link up to, apparently, copies of the actual agreement.

[Gary Farber]

I like page 2, although, of course, what 14 Senators "believe" and "encourage" doesn't matter very much.

But I welcome anything resembling any show of sanity on this.

[bob mcmanus]

"The 14 senators who forged the compromise included..."

Ya know what? I have always liked those Republicans more than that group of Democrats.

If they have sacrificed Brown, promised to defeat her on the floor, that is something. The WH will be stung. I will believe it when I see it. But I am honestly having difficulty saying those particular Republican Senators are not to be trusted.

But they haven't seen pressure like they will see if a moderate or liberal SCOTUS seat opens up.

And I still would rather have fought and lost than surrendered. I would rather have open warfare than false comity.

[hilzoy]

Anarch: At first, I couldn't tell that that was what you were saying, because the one solitary N was way over at the edge of the screen. So it looked like some sort of primal scream in computer form. Was there anything specific that he said?

I'm trying to figure out what I think of this. Plainly the Senate, as an institution, won in a major way, what with not being transformed into the House and all. I hate, hate, hate the idea of any of those three being confirmed, and I also hate what "extreme circumstances" might turn out to allow in. On the other hand, I am really, really glad that this happened, because, like Andrew C., I am a conservative in this sense, and I care about institutions. And I don't want the Senate to go further down the road to all-out war than it already has.

On reflection, though, I think that a lot of it turns on things I don't know. I imagine that there were unwritten parts of this agreement. One, presumably, is that at least these 14 Senators know a lot about how the votes on the three who will be let through will turn out, and if in fact one fails, that makes the deal a lot better in my eyes. I would imagine that there might be some sort of clear understanding about presidential consultation; if so, and if I had any faith that the White House would stick to it, that would make it a much better deal as well. Likewise, I imagine they talked through what might count as 'extreme circumstances', and a lot would turn on what common understandings they came up with.

Not knowing any of these things, I'm glad for the deal as someone who cares about the institutions of government, and while the words "Janice Rogers Brown, Confirmed' will stick in my craw forever, I think I can live with it. (There's also the added bonus that while I'm not sure anyone other than the Senate actually won, Bill Frist clearly lost.) If one of the three loses, and/or there's a decent understanding about consultation which prevents the White House from nominating anyone truly grotesque, then I'm for it in a full-bodied, as opposed to "well, after all, patriotism comes first, she sighed" sort of way.

[Gary Farber]

"One, presumably, is that at least these 14 Senators know a lot about how the votes on the three who will be let through will turn out...."

This is probably obvious, but those 14 are the vote. It's a given that all the other Democrats will vote "nay" on cloture and all the other Republicans will vote "aye." I think. I could be wrong, given my lack of actual seerdom.

[Gary Farber]

"I think. I could be wrong, given my lack of actual seerdom."

Thinking about it a tad more, I guess I can't exclude the possibility that they know something about one of their colleagues that I don't (that's relevant in terms of how they'd vote on a nominee). It seems rather unlikely, but it's possible.

[hilzoy]

Gary: on cloture, yes; but I meant: on the votes on Owen, Brown, and Pryor. The ones that will take place once cloture is secured.

Just for the record, if I ever hear anyone say again that liberals aren't willing to accept compromise for the good of their country, I reserve the right to scream, "I thought this compromise was OK, even though I had to swallow the idea of Janice Rogers Brown being confirmed!!" at the top of my lungs.

[Gary Farber]

Ah, gotcha.

"I reserve the right to scream...."

Comfort: I'm sure the outraged howls at this "surrender" of the President's right to get all of his nominees and of the right of no Republican President's judicial nominee to ever be blocked from a floor vote again, are appearing even now across the blogosphere.

[Gary Farber]

Okay, overall this is a relatively temperate, and probably fairly accurate, analysis, but then we get here:

Under no circumstances can this be seen as a good deal for the Senate majority or for Constitutional rule. The net effect is that an even smaller minority in the Senate has hijacked the confirmation process than we saw during the filibusters -- and like all tyrannies, we can only hope for benevolent despotism rather than disaster.

And we can thank Bill Frist for his lack of leadership and resolve for taking a majority and turning it into a minority. Not One Dime for the NRSC as long as Frist remains majority leader, or for the Seven Dwarves ever. Patterico is on board with that pledge as well.

UPDATE: Mitch Berg starts off his open letter to Bill Frist thusly:

To: Bill Frist, US Senate. From: Mitch Berg, Schmuck Citizen and pissed-off former GOP contributor Re: Your Infinite Cretinism

Read the whole thing. God bless Mitch, he knows how to say what I really feel.

Like I said. Sometimes I am a seer.

[CharleyCarp]

With Bob, I think the word of each of the Rep 14 is good. This is why I think the Dems will be able to filibuster Brown, Estrada, others of similar vein for the S Ct.

I thinking fighting and losing is way overrated.

[Anarch]

I'm sure the outraged howls at this "surrender" of the President's right to get all of his nominees and of the right of no Republican President's judicial nominee to ever be blocked from a floor vote again, are appearing even now across the blogosphere.

Oh my yes.

[You can find your way to the actual sites if you wish.]

[bob mcmanus]

Democrats Blinked

Of course the freepers are howling; they pushed the Democrats three feet over the line they won't stop now, so close to the cliff.

As I said, if one of the three is defeated in a public floor vote, that will be sufficient insult to the WH to make this almost bearable. But stop listening to spin and watch what actually happens. And what will happen is that two unacceptable, absolutely unacceptable nominess will be confirmed without resistance.

What principle has been successfully defended? The nuke remains viable. And my bottom line, how does this help Democrats win Senate seats? They stand for nothing but themselves.

[Gary Farber]

Oh, yes, this is good. I particularly like this part: "You entered into an agreement with a Klansman, a drunk machine hack and a party bag man. You are the Neville Chamberlain of my generation."

Plus links to Malkin and Powerline.

They're this pissed off: it must be a good deal!

I kid about my reasoning. But I'll take a little schandefreude. Read the whole thing. Oh, and don't miss where he calls Frist a "hamster."

[hilzoy]

You'd be right. Good collection of links here. The Freepers are going nuts, in a sort of "who let these people out of kindergarten?" way (any compromise at all a stab in the back; sold out once again; various references to, well, unpleasant acts popularly thought to involve humiliation, vanishing balls, absent spines, and similar anatomical oddities; never vote Republican again after this, etc.) Powerline says it's sickening. Etc.

Leafing through this, I thought: I don't live in the same universe that they live in. In my universe, some people got together to try to act like grownups, cut a deal that will delight no one, and basically did a good thing. It was something we had to do, but it was forced on us by an unprincipled power grab by the majority leadership, and we sacrificed a lot to prevent them from burning the Senate down. In their universe, this was the only way to stop a Democrat power grab in its tracks, and the Republicans have folded again. (I keep asking myself, how do we pull off these power grabs with basically no power whatsoever? One of life's little mysteries.)

[hilzoy]

Gary: Good thing you're kidding, since I think a lot of these guys spend their entire lives being pissed off. So if everything that pissed them off was a good thing, we would truly be living in the best of all possible worlds.

[CaseyL]

They are; it's quite delightful. There's some angst on the liberal blogs, too, but nothing in comparison to the conniption fits on the Right. Let's cross our fingers and toes and hope that Dobson and his fundie nutters mean what they say about abandoning the GOP.

Last I heard, Frist was still making noises about not accepting the deal. I'm not sure what he can do. He might've had the votes to force a simple majority rules change, but I doubt he has the votes to torpedo a done deal. Be interesting if he tries, though.

And it will be interesting to see if that "Moderate Caucus of 14" becomes a new center of gravity in the Senate.

[KCinDC]

Dobson's reaction:

This Senate agreement represents a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats. Only three of President Bush's nominees will be given the courtesy of an up-or-down vote, and it's business as usual for all the rest. The rules that blocked conservative nominees remain in effect, and nothing of significance has changed. Justice Clarence Thomas, Justice Antonin Scalia, and Chief Justice William Rehnquist would never have served on the U. S. Supreme Court if this agreement had been in place during their confirmations. The unconstitutional filibuster survives in the arsenal of Senate liberals.

We are grateful to Majority Leader Frist for courageously fighting to defend the vital principle of basic fairness. That principle has now gone down to defeat. We share the disappointment, outrage and sense of abandonment felt by millions of conservative Americans who helped put Republicans in power last November. I am certain that these voters will remember both Democrats and Republicans who betrayed their trust.

I feel better already, although I wish he'd been less complimentary to Frist.

[hilzoy]

And here's Josh Marshall, proving once again why he's one of the best bloggers ever. After going through a lot of the reasons to be dissatisfied:

"Having said all that, the whole tenor of the Republican ultras on the Hill today is to demand unimpeded power, to push past conventions and limits, to go for everything. And here they got turned back. A sensible Republican party might be satisfied to have gotten three of its nominees -- numerically speaking, they did fairly well. But this whole enterprise was based on wanting it all, on not accepting limits, on rejecting government by even a modicum of consensus with a sizeable minority party. They got stopped short. And the senate Republican leadership is undermined.

So this isn't a pleasant compromise. But precisely because the Republicans -- or their leading players -- are absolutists in a way the Democrats are not, I think this compromise will batter them more than it will the minority party, which is after all a minority party which nonetheless managed to emerge from this having fought the stronger force to something like a draw."

[Gary Farber]

Something I don't usually say, but I'm with Kos on this:

Thing is, we don’t know that we had the votes. We had 49. We needed two more. Did we have them? Now, some wanted to roll the dice, but had we lost, Dobson would’ve chosen the next Supreme Court justice. I wasn’t willing to make that bet, and I’m glad we didn’t have to. On top of everything, Frist looks weak. He’s failed his crazies. He’s finished. Things may change, but so far, this is the second-best option. Beating Frist on the procedural vote may’ve been the best option. But the worst option was too horrible to contemplate.

Sounds right to me. Naturally, we have our own set of "no surrender! traitors!" folks. I'll take Richard Russell's advice on Vietnam, and declare victory and go home.

[CharleyCarp]

Gary, I read the CC analysis to which you'd linked. Neither the author nor most of his commenters seem able to read a contract. They seem to think that allowing the three nominations to go to a vote means that 'extraordinary circumstances' excludes circumstances just like them. This does not follow at all -- the provisions are in separate sections for a reason, and nothing about allowing these three says anything about what an individual Dem senator is going to find extraordinary. Similarly, the commenters (and author) seem to think that a filibuster of Saad and Myers would be a breach -- despite the fact that the Dems specifically made no committment regarding these two, and explicitly excluded them from the treatment accorded 'future' nominations. The terms of part II do not apply to the nominees in part I.

I forsee bitterness on the right, especially if the Admin sends over an extraordinary nominee, draws a filibuster, and Warner et al don't back a nuclear strike. Now if Rove is as clever as his detractors say, he's planned this, and hopes to ride Right wing bitterness to a filibuster-proof majority in the upcoming midterms.

[washerdreyer]

Bainbridge likes the deal, which column does that go in?

Also, having a joke ignored may well be a fate worse than banning.

[Gary Farber]

"Good thing you're kidding, since I think a lot of these guys spend their entire lives being pissed off. So if everything that pissed them off was a good thing, we would truly be living in the best of all possible worlds."

Bob, it might be that this is the Battle of the Coral Sea for the Democrats/Republicans (quote for those not up on military history):

On the face of it, the Battle of the Coral Sea appeared to be a victory for the Japanese. The Imperial Navy had sunk one American fleet carrier and damaged another, sunk an oiler and a destroyer, while losing only Shoho and a large number of planes, and suffering severe damage to Shokaku and enough damage to Zuikaku to keep both out of the war for several months. It was a tactical victory for the Imperial forces. However, the battle was a strategic victory for the Americans. The Coral Sea meant the end of Japanese expansion southward. They would never again threaten Australia and New Zealand.

(Hey, incidentally, 18 years ago I was editorial assistant on Edwin Hoyt's book, "Battle of the Coral Sea," accomplishing such thrilling tasks as putting the pictures in the insert into an order and writing captions, writing endmatter, and lightly line-editing the book and cover matter. :-))

[Sebastian Holsclaw]

"If conservatism means anything good, it means respecting existing institutions, not trashing them; playing by the rules, not breaking them as soon as you can get away with it; and sticking to ideas like honor and respect when they are neither popular nor profitable."

The problem with this formulation is it allows liberals to change institutions as much as they want and then invoke precedent whenever they are out of power to prevent changing things back. (General comment, nothing about the filibuster).

[Gary Farber]

Whoops, I was quoting you, Hilzoy, to reply "truly."

[CaseyL]

"The problem with this formulation is it allows liberals to change institutions as much as they want and then invoke precedent whenever they are out of power to prevent changing things back."

And this is different from what Orrin Hatch and the GOP did (with blue slips and other holds) how, exactly?

[bob mcmanus]

Repubs:"Give me all your money, or I will burn your house down."
Reid:"I can't stop you from burning my house. But how about if I give you half my money."
Repubs:"Ok"
Reid:"Tricked em. Still got my house and half my money."
Repubs:"Shucks, suckered by the rabbit again. See ya next week."

[Gary Farber]

On an utter and complete digression, I'd just like to make clear that I did not write Glenn Reynolds in order to get this link. (On my look at the script and deleted scenes in Revenge of the Sith, not politics.) (I'm pretty sure I can guess the intermediate link that served.)

Star Wars: despite an excessive amount of dumbass attempts to politicize it, still able to bring right and center together!

;-) (Also to say how awful they think the movies are, of course.)

[Gary Farber]

Oh, wait, I'm brainless. I suddenly recall that when I sent out a mass e-mail to a smattering of bloggers, I probably did include Glenn. I can only plead that it was yesterday morning, I just took some brain-deadening medication a while ago, and did I mention I'm brainless? Never mind.

[KCinDC]

Bob, if it's true that you can't stop them burning down your house, getting them to spare it is a victory. Sometimes you have to make the best of a bad situation.

But I doubt we've seen the last of the nuclear option, since this deal won't last long. Any filibuster will give the moderate Republicans an opportunity to claim the Democrats are breaking the agreement because the circumstances are insufficiently extreme. And the stuff in the agreement about having the president consult with Congress is complete fantasy, of course. That said, if we're going to have a blowup and drive the public perception of Congress further into the ground, I'd rather it be closer to the 2006 election.

[hilzoy]

Sebastian: if a lot of us conservatives, in my sense, weren't also liberals, i might agree with you.

[hilzoy]

Hey, I just thought of another silver lining: that annoying David Brooks column gets to be wrong!

"That was the deal, and a very fair one, too. But of course these are moderates. They can't just shove something through on the rough and dirty the way the partisans do. They can't lock themselves in the room until they reach a deal and then march out and announce it to the press.

Then they had these arcane discussions about exactly which words to use. Since even moderates don't really trust one another, they were looking for language that would codify every possible contingency. A few gutless wonders were hoping they could find the words that would protect them when the attacks started coming from the pressure groups on their own side."

Oooh, those wimpy little moderates, with their quaint sense of fair play. They can't actually accomplish anything, since as we all know, having moderate political beliefs automatically strips you of any sense of passion or conviction, and enrolls you in the Church of Laodicaea:

"3:14 "To the angel of the assembly in Laodicea write: "The Amen, the Faithful and True Witness, the Head of God's creation, says these things:

3:15 "I know your works, that you are neither cold nor hot. I wish you were cold or hot.

3:16 So, because you are lukewarm, and neither hot nor cold, I will vomit you out of my mouth. "

[Gary Farber]

Hilzoy, I think in this instance, reluctant as I am to suggest it, you may be being a bit -- please note I say a bit, not "entirely" -- unfair to Brooks. He didn't say there was anything wrong with the principle of moderation, and while I'd lean towards thinking he should reverse his criticism from "many" moderates to "some" moderates, it's still not the same as criticizing "moderates" for being moderates. So saying he was saying there was something "automatic" to criticize about moderates is something I don't see in the text.

Brooks: "The answer, to be blunt, is that some of the moderates are moderates out of conviction. They do have courage. But many moderates are simply people who feel cross-pressured by different political forces, and their instinctive response is to shrink from pressure. They lack spirit to take risks, to actually lead."

This is not a claim that moderates are inherently bad.

[bob mcmanus]

And Loved the Deal

Mark Schmitt is my guru, and he is ok with the deal, so like unless I was like a total crazed firebrand hater-type, I suppose should just relax and ommanipadmehum into acceptance.....
..........
I'll take the other 5 mg diazepam & 1/2 ativan and go to bed.

[NeoDude]

Republicans are right-wingers, pure right-wingers...conservativism stoped with the first Bush.

German conservatives thought their right-wingers were to rabid...but they also thought anything was better than liberals and leftist.

[Dantheman]

I think ultimately the compromise is the result of Generational (in a Strauss and Howe sense) dynamics. This deal may be the last gasp of the Silent generation (it being no accident that the leaders were people like McCain and Warner, Byrd and Inouye) agreeing to a deal which "solves" today's problems without resolving the bigger conflict. It may be all they can agree on, it may set the stage for the fighting to begin again shortly (I'd love to be a fly on the wall at the organization meeting for the next Congress in 2007), it may cause the parties to the deal themselves to be vilified, but it appeals to their sense of fair play and preserving the existing order.

Just as (choosing a [hopefully] more critical deal from a similar stage in the past) the Compromise of 1850 was.

[Dantheman]

whoops -- link busted. It should be:

link