And so the country takes a brief breath before what promises to be a politically bloody summer with probably two Supreme Court seats up for grabs. The prospect: polarization of the left and the right and a testing of the center as never before.
A Washington Post piece underlines the fragility of the agreement that nixed the “nuclear option” on removing filibusters on judicial nominees:
Democrats’ hopes of blocking a staunchly conservative Supreme Court nominee on ideological grounds could be seriously undermined by the six-week-old bipartisan deal on judicial nominees, key senators said yesterday.
With President Bush expected to name a successor to Justice Sandra Day O’Connor next week, liberals are laying the groundwork to challenge the nominee if he or she leans solidly to the right on affirmative action, abortion and other contentious issues. But even if they can show that the nominee has sharply held views on matters that divide many Americans, some of the 14 senators who crafted the May 23 compromise appear poised to prevent that strategy from blocking confirmation to the high court, according to numerous interviews.
The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under “extraordinary circumstances.” Key members of the group said yesterday that a nominee’s philosophical views cannot amount to “extraordinary circumstances” and that therefore a filibuster can be justified only on questions of personal ethics or character.
The distinction is crucial because Democrats want to force Bush to pick a centrist, not a staunch conservative as many activist groups on the political right desire. Holding only 44 of the Senate’s 100 seats, Democrats have no way to block a Republican-backed nominee without employing a filibuster, which takes 60 votes to stop.
GOP leaders, sensing the Democrats’ bind, expressed confidence yesterday that the Senate will confirm Bush’s eventual nominee, no matter how ideologically rigid. “I think there is every expectation, every reason to believe that there will be no successful filibuster,” Majority Whip Mitch McConnell (R-Ky.) said on “Fox News Sunday.”
Under the “Gang of 14” accord, the seven Republican signers agreed to deny Majority Leader Bill Frist (R-Tenn.) the votes he needed to carry out his threat to bar judicial filibusters by changing Senate rules. The seven are implicitly released from the deal if the Democratic signers renege on their end. Yesterday, key players suggested the seven Democrats will automatically be in default if they contend a nominee’s ideological views constitute “extraordinary circumstances” that would justify a filibuster.
Sen. Lindsey O. Graham (R-S.C.), one of the 14 signers, noted that the accord allowed the confirmation of three Bush appellate court nominees so conservative that Democrats had successfully filibustered them for years: Janice Rogers Brown, William H. Pryor Jr. and Priscilla R. Owen. Because Democrats accepted them under the deal, Graham said on the Fox program, it is clear that ideological differences will not justify a filibuster of a Supreme Court nominee.
“Based on what we’ve done in the past with Brown, Pryor and Owen,” Graham said, “ideological attacks are not an ‘extraordinary circumstance.’ To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent.”
In other words, ideology is being taken off the table. Can the agreement hold?
Part of the problem is the political context of early 21st century America. If the right feels at times under attack and the left feels at times under attack, in a polarized polity the center is always under attack. In a column last month in the New York Sun (subscription required) Independent Nation author John Avlon wrote:
In a political season where centrists have been under attack from the increasingly polarized left and right…a bipartisan coalition displayed the power of balance and restored the balance of power to the center in the Senate.
Fox News commentator Dick Morris proclaimed in his column for The Hill that “there now exists, in effect, a third-party caucus in the Senate of moderates from both parties.” But such celebrations are premature.
The extremes are entrenched – they have a well-established apparatus of fund-raising and institutional support that the centrists cannot currently equal on a consistent basis. The center has briefly proved that it can hold against enormous pressure on both sides, but it will need to adopt far greater discipline and organization and a more coherent identity if it is to permanently turn the tide and restore proportionate influence to the moderate majority of Americans.
If increasing numbers of militant moderates and middle-of-the-road warriors to stand up and speak out in arenas from town halls, talk radio, blogs, and television to the halls of Congress, they can ultimately win this fight. The bipartisan centrist coalition of 14 senators who stopped the so-called nuclear option and simultaneously secured confirmation for formerly blocked judicial nominees like Priscilla Owen need to hear applause from the broad public that appreciates their independent stand against the party leadership. They will get no such vote of approval from their more partisan colleagues.
Their counterattack has already begun. It was evident in the torrent of criticism from among ideological absolutists and their apologists….
In today’s hyperpartisan political dialogue, if you are not an ideological ally, you are automatically considered an enemy. As a result, there is a determined confusion of terms: If someone votes in lockstep with party leadership, they are described as “courageous,” where the far more difficult decision to take a principled stand of independence and vote conscience instead of straight party line is routinely described as cowardly. This is not a little Orwellian.
Look at the 14 members of the bipartisan centrist coalition and it is evident that they are a balanced combination of Blue-State Republicans and Red-State Democrats, Senate traditionalists and independent-minded mavericks.
Avlon argues that moderate Democrats and moderate Republicans have far more in common than they do with their party’s own extreme wings and that “these are folks who likely admire both Teddy Roosevelt and John F. Kennedy, Harry Truman and Ronald Reagan (for that matter, it’s worth remembering that Ronald Reagan admired Harry Truman, and campaigned for him in 1948).”
He notes that the Senate was supposed to be a check on the free-for-all-ish House of Reprentatives. But polarization has increased in recent years. So bipartisan centrist coalitions have replaced the kind of moderating party leadership that used to be a force in Congress.
And here’s where Avlon’s column takes on a special meaning today:
Going forward, centrists cannot afford the luxury of incoherence and indecision: Weakness will only serve as a provocation to professional partisans and ideological absolutists on both sides.
If strong centrists are to revive our national search for common ground, moderate voters will have to identify themselves actively as centrists and independents, while members of the growing House and Senate centrist coalitions will have to work together more closely across party lines with greater constancy and sense of purpose.
Is THAT possible going into a political-life-and-death battle over a Supreme Court seats? On July 4, 2005 the chances seem slim.
If anything, as people on the far left and far left eagerly gear up for a polarizing battle, many Americans can’t help but feel a sense of dread at yet another brutal political battle that divides the nation.
But there is another factor as the summer unfolds. You find it in this quote in Jonathan Singer’s excellent Q&A interview with former Senator Alan Simpson:
Jonathan Singer: One of the big things that has occurred in the Senate recently was the deal to stop the “constitutional� or the so-called “nuclear� option. You were around in the Senate in the ‘80s and the early ‘90s for a number of the major battles over nominees, whether it was Bork, whether it was Thomas. Do you think the deal will hold? And what will be the repercussions of it?
Alan Simpson: I think that what the seven moderates on each side did… The deal will hold, unless they put up a card-carrying commie or a guard from Lenin’s tomb or something, or a ragged Neanderthal on the Republican side. It will hold because they know that whatever the Republicans do here to lessen the rights of the minority, in ten years they’ll be in the minority and they’ll feel the sting of the lash. That’s the way it works. Like a giant wheel with a hobnail boot. You set it in motion, it’ll kick your opponent in the ass, but eventually it’ll get you too.
Of course Simpson, in this interview (it MUST be read in full), was talking when a Supreme Court seat nomination was a prospect — not a reality.
Will — and should — ideology be kept off the table in judging nominees? Are some GOP moderates searching now for a way out of the agreement? Are Democrats using it as a shield to go after any Bush nominee with whom they greatly disagree? Can this agreement reastically hold? And if it falls apart, and particularly if the filibuster is eliminated, what would the impact be on the quality of debate in the U.S. then?
We don’t have those answers — yet. But we will real soon…
UPDATE: A reader asks why we don’t mention Democratic moves to get out of the agreement. So far what we’ve read is shock by Democrats over what the Republicans are saying which seems to be nudging the compromise in the direction of unraveling. Read Daily Kos here.
UPDATE II: A Washington Post article quotes some experts saying the Supreme Court choice is either OR for GWB: does he want to shove through a controversial choice and risk the rest of his agenda or pick one that has wider support and allows him to press for other things on his legacy list? If he picks one with wide support, could he lose his conservative base? Some key quotes from the story:
–“Bush has to decide if he wants to keep the base happy and maybe sacrifice his dreams for unity on Iraq — as well as much of his domestic legislative agenda,” said Bruce Buchanan, a professor at the University of Texas.
–On opposition to Attorney General Alberto Gonzales:”President Bush must nominate someone whose judicial philosophy is crystal clear,” said James Dobson, founder of the conservative religious group Focus on the Family. “And no one has been clearer about this than the president himself, who said during his campaign that he would appoint justices in the mold of Clarence Thomas or Antonin Scalia,” Dobson said.
–“It’s a defining moment for President Bush,” said Elliot Mincberg, legal director for the liberal People for the American Way, which is leading the coalition of interest groups prepared to challenge Bush’s choice. “It may be the president’s last real chance to fulfill his pledge to the American people to be a uniter, not a divider,” he said. “Does he decide to pick a judge or pick a fight?”
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.