The Nuclear Option

The Washington Post has an editorial opposing the so-called nuclear option, i.e. ending the ability for the minority party in the Senate to filibuster against judicial nominees, even though they support the general notion that the president should have leeway in nominating judges to the federal bench and those nominations should get up or down votes. Among its arguments, the Post makes a point that often gets overlooked.

But we oppose the nuclear option for another reason, too: It's rarely a good idea to fashion long-term institutional change for short-term tactical benefit. Nothing illustrates that more clearly than the positions of convenience both sides now take on what should be an issue of principle. For most of the past century, liberals viewed the filibuster as retrograde and antidemocratic. Only now that they are in the minority have they seen the virtue -- not to mention the Founders' handiwork -- in minority obstructionism.

The Republicans have their own situational ethics, having come rather late to the purity of their belief in prompt up-or-down votes for every nominee. Moreover, they continue to defend the filibuster when it comes to legislation, citing principled justifications for minority empowerment: that it cools extremism, promotes bipartisan solutions and slows decisions taken in haste or passion. It's not so terrible, they say, to have to persuade 60 senators before imposing momentous change on the country, but they find offensive the same logic applied to a Supreme Court nominee.

Is there more to either side's conversion than a lust for short-term political advantage?

Detonating the nuclear option to get ten controversial nominees through is an incredibly short-sighted tactic. Surely the Republicans realize there will come a day when they will again be in the minority in the Senate, and when they are they will dearly miss the option of filibustering any controversial nominee by a Democratic president. In the legal world, there is an old aphorism that "hard cases make bad law," the idea being that decisions in extreme cases make a bad foundation for general legal principles. The same applies to the question of the filibuster. Changing the rules for a small handful of controversial nominees makes for bad rules.

Why are the right-wingers so anxious to get these ten nominees through that they are willing to compromise their own position long-term to accomplish this? I think they realize that they may never have such a golden opportunity again. The religious right may never have a president more friendly to their cause than they have now, especially when it is conventional wisdom that Bush won re-election due in large part to them. Because of the perceived power of the religious right today, they may never have the influence they have over the Senate again. So they want to capitalize on their position by getting as many of their judges, with lifetime appointments remember, on the bench as possible. That way their influence will extend well beyond their time of political power.