Time for the Republicans to be bold

Republicans like to tell themselves that politics is an extreme sport, and that they are the extreme sport guys. Republicans are the ones who paddled the white water to try to rescue Terri Schiavo, whose parents lost the legal battle to maintain her life-support system. They are the ones who go over the Niagara Falls in a barrel for the tax cause. They are the ones who dare to "use the nuclear option", in their own words, on the filibuster. Dude!

But the party's insistence on acting "extreme" does not always serve it well. After all, they are not dudes on a raft - they are middle-aged office people in red ties. Sometimes, the compulsion to seem extreme makes the Republicans do juvenile things, such as opine on the Schiavo case. Other times an "extreme" label merely serves to make a reasonable project look radical. That is the case with the current debate in the US Senate over the filibuster.

Consider the situation. Republicans have nominated candidates for positions as judges in appellate courts. A majority is needed for most votes, and there are 55 Republicans in the 100-seat Senate, so the candidates should be sailing through. But Democrats are using an old procedural device - the filibuster - to stall a vote in a number of cases. To overcome a filibuster the Republicans need 60 votes. Some judicial candidates have been waiting four years for confirmation, even though they enjoy majority support. The Republicans want to alter rules of procedure so that a simple majority vote is sufficient.

By mislabelling such a narrow change as "nuclear", Republicans are reinforcing the Democratic argument that they are moving to the far right.

The Democrats also argue that amending filibuster rules would encourage a troubling, even un-American, tyranny of the majority. But the truth is that the majority-rules or winner-take-all system is highly American, as observers as far back as Alexis de Tocqueville have noted. And what Republicans are doing is within the rules. Article I, Section 5 of the US constitution says of the House of Representatives and the Senate that "Each House may determine the Rules of its Proceedings". If Republicans want to curtail the filibuster rule, they can.

As for the Democrats' argument that Republicans are breaking with history, one can also turn that around. Formerly, Democrats tended to permit the confirmation of opponents' candidates when the opponents had the majority. Now their systematic use of the filibuster device amounts to their own rewriting of procedural law. The Democrats are creating an American oxymoron: the 41-out-of-100 majority.

Finally there is the reason that has prompted calls for action. Again, hardly extreme. For decades now in the US, the legal tide has flowed left, away from conservative interpretation and respect for precedent and towards legal activism. Advocates of this change argue they represent "the living law" and the "living constitution". The trend is so strong that even sitting judges viewed as somewhat conservative when appointed - such as Sandra Day O'Connor - are now drifting left. Republicans therefore want traditional judges, the sort who respect precedent and who reject the notion of judges as architects. They are not so much wrenching the nation to the right - the Democratic charge - as moving it back to the centre.

As John Oldham McGinnis of Northwestern University notes, rewriting filibuster rules now would have long-term benefits. That is because the current filibuster rule favours a Democratic opposition more than it would favour a Republican opposition. The modern legal culture is already so far to the left that it makes many Republican judicial nominees look like extremists, the sort whose candidacies cannot find 60 out of 100 Senate votes. If Republicans do not act on the filibuster today, the courts will move still further to the left.

There is another point to be made here. Many observers say that the outstanding intellectual quality of a few star conservative judges compensates for the reduction in their numbers. This is the famous "at least they have Scalia" argument (referring to Antonin Scalia, the Supreme Court judge so traditionalist that he has lectured on the merits of "the dead constitution"). But the truth is that a Scalia would be hard to confirm today.

It is possible to argue that the Republicans are wasting energy on the filibuster rule change. The US Congress faces challenges beyond confirming appellate judges. Rewriting Social Security and the US pension system. Fixing Medicare, the senior citizen health programme. Ending the outrageous spending habits of the Congress. Fending off crazed advocates of a high-rate value added tax.

You cannot topple or even renovate a New Deal edifice such as Social Security without Democratic support. The danger is that Republicans will so antagonise Democrats in the contests over the appellate judges that such support will not be forthcoming.

But this interpretation is itself too cautious. The reality is that there is a judicial confirmation matter downriver whose importance comes close to matching that of Social Security or Medicare. It is the filling of Supreme Court vacancies. If Republicans fail when it comes to their appellate candidates, they stand less chance of winning the larger showdown. The correct policy for Republicans is obvious: be bold, and be confident, for your argument is not extreme.

© Copyright 2005 Financial Times

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