Thinking ‘Nuclear’

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

When a self-selected group of Republicans and Democrats reached a compromise Monday night, agreeing to let a handful of President George W. Bush’s judicial nominees come up for a vote on the Senate floor, they narrowly averted a crisis. This came as a great disappointment to much of official Washington.


Here in the nation’s capital, we love nothing better than a good crisis. That’s why there seems to be a new Crisis of the Century every couple of months. And even when one is averted, as it was yesterday, you can learn a lot – especially if you pay attention to the language being used as the crisis comes to a boil.


According to several reports including his own, Senator Trent Lott is the wordsmith credited with coining the phrase “nuclear option” to describe the Republican plan to scuttle a Democratic filibuster of Bush’s judicial nominees by altering Senate rules. Suddenly, morning and night, “nuclear option” tripped lightly from the tongue of every pundit and politico, causing shudders and thrills all around.


Lott, a Mississippi Republican, has a gift for hyperbole, but we in Washington are not always so receptive to his extravagant language. In 2002, he was forced from his post as Senate majority leader when he opined that if the old, segregationist Strom Thurmond had been elected president in 1948, “we wouldn’t have had all these problems over all these years.”


It’s not a surprise that a man who could uncork a statement so stunningly boneheaded would go on to compare a tactical alteration in the Senate’s rules to a nuclear attack. Why the Washington establishment embraced his latest linguistic extravagance isn’t much of a mystery, either.


The phrase was built for titillation. It excited journalists, especially the dutiful drudges on Capitol Hill who were momentarily granted a breather from reporting on the dreary particulars of Social Security reform.


Institutional moderates – editorial writers and think tank experts, for example – got to indulge in tut-tutting over the irresponsible banshees who seized control of the “world’s greatest deliberative body.”


And Democrats benefited from the phrase most of all: It suggested that by filibustering some of Bush’s judicial appointments, they were pursuing normal political gamesmanship, while the Republicans were proposing a radical assault on the glorious traditions of the Senate.


In fact, none of what’s been going on in the Senate over judges the last several weeks is terribly unusual, when placed in the proper light. The debate over the filibuster is a proxy war – a fight that pretends to be about one thing, the rules of the Senate, but is really about another, the role of judges in national life. And that war has been escalating for 20 years.


This was the point made by Senator Arlen Specter earlier this month, in one of the few disinterested and trustworthy Senate speeches made during the filibuster fight.


Although Specter was himself ambivalent about changing the rules to disallow filibusters for judicial nominees – the “nuclear option” – he nevertheless saw it as the tactical capper to a much longer process.


“Each side,” he said, “has ratcheted up the ante in delaying and denying confirmation to the other party’s presidential nominees.”


When Democrats took control of the Senate in 1987, Specter pointed out, they refused to hold hearings on seven Circuit Court nominees of President Reagan and denied floor votes for two others. The confirmation rate fell to 65% from 89%.


President Carter, in his four-year term, saw 10 nominees denied hearings. Reagan, in two terms, had 30. President George H.W. Bush, in his single term with a Democratic senate, had 58.


The average length of time required to vote on a nominee – about 50 days under Carter – doubled under the first President Bush, to 100. Then came Republican payback for Democratic denial and delay.


Under President Clinton and a Republican Senate, the average wait for confirmation grew to 262 days for Circuit Court nominees. Sixty Clinton nominees were blocked.


The GOP talking point that Republicans never filibustered judicial nominees was disingenuous, if not thoroughly deceptive. Their tactic against Clinton nominees was the “hold” or the “blue slip” – technical maneuvers by individual senators to ensure a nominee never receives an up-or-down vote. The effect is the same as a filibuster’s.


How to account for the intensity of the proxy war? Both Democrats and Republicans have repudiated the ideal of an independent, nonpolitical judiciary. And so have judges, for that matter: Over two generations, judges at the appellate level have abandoned their traditional role as neutral arbiters and assumed the functions of lawmakers, closely regulating everything from the contours of abortion rights to the racial composition of public schools to the interrogation techniques police are allowed to use on criminal suspects. In other words, senators are fighting to control the judiciary because the judiciary controls the country.


Which leads us to the absurdity of the filibuster fight, when each side claimed to be defending high principle while acting out of character. Liberal Democrats – usually so forward-looking, unfettered by hidebound custom, embracing change and innovation as their friend – suddenly posed as the moss-backed guardians of inviolable tradition.


Conservative Republicans – usually so reverential of history and institutions, cautious, skeptical of innovation – were suddenly willing to undo a time-honored rule as a way of getting their own judges confirmed.


The particulars of the debate about the filibuster were unimportant, because they were interchangeable. No one should doubt, and the experience of the past 20 years proves, that if the shoe were on the other foot, each side would happily have been making the other’s argument – and claiming, as always, to be the defenders of high principle.



Mr. Ferguson is a columnist for Bloomberg News.


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