Going Nuclear

Friends have been asking Dr. Potomac for his views on Senate Majority Leader Bill Frist’s proposal to end the practice of unlimited debate (read: filibuster) against presidential nominations to the federal judiciary.  Dr. Potomac asks readers to bear in mind that he speaks as one who has spent nearly half of almost a 20-year federal career working for Senators of both political parties and has a quaint attachment to its somewhat arcane habits.  He has seen great evil and great good done through the Senate practice of “holds” on judicial nominees which are basically filibusters without all that annoying chatter.  On the one hand, you have Lani Guinier stopped in her tracks by the threat of Senate floor donnybrook.  On the other, you Chuck Schumer picking his teeth with the desiccated bones of federal appeals court nominees.  Geese and gander line up for the same Senate sauce.  The real question is whether, in the long-term, the Republic (as opposed to the Republican Party) is better served by unlimited debate for judicial nominees or a relative fast-track to confirmation.  This is a prudential question on which reasonable conservatives can, and do, disagree.

Dr. Potomac would add one more consideration that in his (reasonable) view lends itself toward limiting debate.  The federal courts are the playground of social liberals.  (This is in large part the fault of previous Republican administrations who allowed a lot of winking and nodding to take the place of clear expressions of judicial philosophy resulting in unfortunate “growth” among certain members of the federal bench.)  Pardon Dr. Potomac’s cynicism but is it likely that the Left has suddenly seen the wisdom of the counter-majoritarian nature of Senate processes and procedures?  It seems much more likely that People for the American Way, the ACLU, the Alliance for Justice, et. al. are really worried that no one dilute the liberal judicial philosophy which dominates the federal courts.  To prevent this outcome, they are willing to join hands with the doctrine of unlimited debate which blocked civil rights legislation for 100 years – and they are even leaning on Senator Robert C. Byrd, he of Klan heritage, to help them do it.  That’s enough to meet the “recommended daily amount” of irony for any thinking person. The bottom line here is that the federal judiciary needs reform (personnel is policy, remember) if the imbalance of power between the branches is to be corrected. Democrats, entirely dependent on the anti-democratic nature of the courts to enforce policies that would be laughed out of any state legislature, will do anything to prevent this reform from happening. Republicans, constrained by too many scruples, ought not to flinch from their duty.

Which brings Dr. Potomac to his final point:  whether Dr. Frist wins or loses (and Dr. Potomac has it on good authority that he will win) this fight demonstrates once again that American liberalism, like an army in full retreat, is engaged in nearly constant rear-guard actions and defensive entrenchments.  Meanwhile, through the attrition of election loses and public-relations setbacks, Democratic ranks continue to thin out.  Conservatives can and should expect to lose battles.  The war, however, is going our way.