The deal to prevent the “nuclear option,” struck last week by Democrats and Republicans, has ushered in a new language war. As the Senate considers some of President George W. Bush’s more radical nominees in the next few weeks – including the mercurial Judge William Pryor – here’s how it plays out:
In exchange for Republican promises to not change Senate rules and roll back the time-honored tradition of the filibuster, the Democrats agreed to filibuster judicial nominees only under "extraordinary circumstances." Then, as part of the same agreement, they confirmed the radically conservative, anti-choice Priscilla Owen, who now sits on the 5th Circuit Court of Appeals. In so doing, Democrats have defined Owen's politics and judicial record as "not extraordinary."
Looking to the future, each time the Bush administration – or future administrations, for that matter – nominates another radical, the Senate will move the line just a bit more, with “extraordinary” denoting an increasingly radical set of ideals, and the unextraordinary denoting a large protean mass of extreme ideologues. The Democrats still seem to think that the deal was a skillful maneuver, but the deal is lose-lose. Once that line is moved further to the right, by the terms they have agreed to, they cannot move it back without being accused of breaking their word.
How will Democrats respond when a nominee with a record of judicial activism against women’s or minority rights comes to the floor, and the Republican leadership charges that she or he is no different than nominees they did not filibuster in the past? The Democrats will be caught with more than their tongues tied; they will be victims of standards that they helped establish. What’s more, Republicans can rightfully use this standard against the Democrats if they ever try to stop, say, a Supreme Court nominee. With last week’s deal, Democrats may have signaled the end of Borking.
The filibuster was established and maintained for centuries because it empowers minority voices in Congress. The very point of the filibuster was to combat extremism by raising the bar beyond a simple 51% vote, preventing thin majorities from hijacking and radicalizing the Senate. As last week’s 55-43 vote in support of Judge Owen indicates, Democrats could have successfully stopped the nomination, forcing Republicans to invoke the “nuclear option,” a plan that a majority of Americans are opposed to. But now, with minority voices subjected to language wars over judicial nominees, the strength-in-numbers protection afforded by the filibuster has been subjected to a highly partisan scrutiny and tit-for-tat debates over the meaning of those two words. The deal the Democrats made puts strict conditions on the use of the filibuster and betrays its original purpose.
This subjectivity, moreover, is ripe fodder for a media that loves to spin otherwise straightforward political battles into television thrillers. Putting the juicy words “extraordinary circumstances” into the hands of a media that loves playing with
“nuclear-” and “constitutional options,” “death taxes” and marriage “penalties” is like giving money to a bank.
Deals that establish new linguistic standards in lieu of time honored and democratic Senatorial traditions are dangerous waters for minority parties to wade in. This is because majorities – especially majorities that control the presidency – have the bullhorn necessary to win wars of words.
As President Bush’s remaining judicial nominees come before the Senate in the weeks to come, watch for the “extraordinary circumstance” line to move. And watch the Democrats scramble – unsuccessfully – to move it back.
Dan Skinner (email@example.com) is an adjunct instructor of political theory at Hunter College of the City University of New York and a student in the PhD program in political science at the CUNY Graduate Center. His blog is Parsing the Political www.skinnerspot.blogspot.com