Since I'm on record carrying on about the right's push for one-party statehood -- and on record criticizing the nuclear option, because it represented the willingness of the Senate's Republican majority to ignore the chamber's institutional integrity for the sake of moving the country toward said statehood -- I feel compelled to say the deal is an acceptable one.
I don't want Janice Rogers Brown on the D.C. Circuit any more than you do. She's a horror show, and she -- not the two nominees the deal rejects -- should have been a no-go. But facts are facts; the GOP is the majority; and they were clearly able to insist on her. Someday, years down the road, when there's a Democratic president and a latter-day Ken Starr, Rogers Brown may well play the appalling role that D.C. Circuit members David Sentelle played in the cornering of Bill Clinton. When that day comes, many liberal bloggers will point to this day. And they'll certainly have a point.
But liberals make a mistake here, I think, if we decide whether we like or don't like this deal on such solely partisan lines. It's been our belief (my belief, certainly, but it's shared by many progressives, in my experience) that the modern conservative movement is willing to trash long-held American traditions and necessary American institutions if those traditions and institutions get in the way of what the movement wants. Thus are the rules bent during a Medicare roll call when the conservatives don't have the votes. Thus Bill Frist -- not to mention his sponsors, like Gary Bauer and James Dobson, who despise this deal as well as far too many of Frist's colleagues -- was willing to charge into the nuclear brink in this case.
I know the Web isn't exactly the medium of high-mindedness, and I don't particularly want to sound corny, but here goes. Liberals, as opposed to today's movement conservatives or, say, the radicals of the left a generation ago, are supposed to believe in those traditions and institutions -- to believe that the march of history is one long process of using them to achieve a more perfect union, as the man said.
This is not to say that the institutions are ideals. Just as Jefferson argued for a little rebellion every 15 years, we should scrutinize these institutions and not just be passively worshipful toward them. As Farhad Manjoo pointed out in Salon last week, there's something really screwy about a body in which a Wyomingite has 68 times the power of a Californian.
But it is to say that liberals shouldn't be willing to subvert these institutions for immediate partisan gains. We ought to oppose Democrats if they ever try this sort of thing, and we ought to hold senators at least to the standard of upholding the authority of the Senate. That's how this whole business is supposed to function. Reading “Federalist 66” for instruction about what to do today is exactly the sort of thing senators are supposed to be doing, and it'd be nice if they did it more often, instead of reading interest-group talking points or their contributor lists.
I'm under no illusions here: The practical fallout from this probably will be mostly negative for our side. Far more important, perhaps, than Rogers Brown's elevation is the fact that this deal pretty much establishes that the Democrats won't be able to filibuster a Supreme Court nominee.
On the other hand, who can predict the future? Just for the sake of argument, here's the non-disaster scenario: Non-movement Republicans could learn from this exercise that they have more muscle than they thought. It might embolden them to stand up to the religious right on some important matter in the future. It might remind them that senators are supposed to do this sort of thing and that they actually do have certain constitutional responsibilities that transcend their allegiance to Tony Perkins.
I'm not crazy about the deal. But there was more at stake here than partisan victory. To the extent that Democrats like Senator Robert C. Byrd of West Virginia were able to persuade enough Republicans to consider the mantra “country, institution, and next, us,” well, I say without apology that it represents a setback for the people whose mantra is the reverse.
Michael Tomasky is executive editor of The American Prospect.
