The detonation of the "nuclear option" against the filibuster for executive branch and most judicial-branch appointments was an obvious win for progressives. If, as seems likely, the use of the nuclear option puts the filibuster on the road to complete oblivion, this is an even bigger win for progressives, as the filibuster is a reactionary device both in theory and in practice. And yet, many people on all parts of the ideological spectrum have resisted this conclusion. Here are some of the major arguments being made against the deal from a Democratic perspective-and why they're wrong.
1. Democrats Will Be Sorry, Because This Means Republicans Will Keep Doing What They've Been Doing Since the Reagan Administration
As I discussed in my initial reaction to the historic action of Reid and the Democratic caucus, the debate over whether to end most judicial filibusters has involved numerous threats by Republicans to keep appointing the same kinds of judges that conservative presidents have been nominating for decades. My favorite example is Senator Chuck Grassley's admonition to Democrats that they would be making his day by invoking the nuclear option because "There are a lot more Scalias and Thomases that we'd love to put on the bench." This argument loses 100 percent of its force given that 1) Scalia and Thomas have already been serving on the Supreme Court for more than two decades, and 2) George W. Bush's appointments would have to turn to their left to see them. As Jon Chait observes, "[t]he threat to nominate more Scalias is about as frightening as Iran threatening to cut off its donations to the Jewish National Fund."
University of Chicago Professor Eric Posner makes a similar argument, asserting that "because of the Senate's new rule, we will see more ideological extremity on the bench-in both directions" and "if the outcome is good for extremists, they will mostly be Republicans." But this argument is no less self-refuting coming from the center than from the right. As the very premise of Posner's argument concedes, Republicans have already been populating the federal courts with extremely conservative judges. Since Democratic presidents have been pre-emptively moderating their nominees to avoid filibusters and Republican presidents haven't, by definition this means that the nuclear option can't make things worse for Democrats and is likely to make them better.
The fact that the pre-emptive moderation of Obama's nominees didn't stop the Republican minority from escalating judicial filibusters reminds us of another reason why getting rid of the anachronistic rule benefits Democrats. The Republican Party has chosen to risk a smaller coalition by demanding greater ideological conformity, while the Democrats have tolerated more heterogeneity to expand the playing field. The filibuster is most useful to an ideologically homogenous minority. The quantity of judges blocked by Republicans was higher under the filibuster despite the greater nomination of Democratic nominees.
2. Pretending that the Filibuster Is the Only Political Constraint on the President
In his own threat that the nuclear option means Republican presidents will do what they would do anyway, Jonathan Adler does identify a Supreme Court nominee who would be more radical than Alito: the libertarian legal scholar Randy Barnett. Barnett, who supports constitutional amendments that would not only make a federal income tax unconstitutional but would also invalidate Medicare, Social Security, and the Civil Rights Act. He also believes that the Constitution in its current form compels all of these conclusions except for the federal authority to pass an income tax. If Barnett could be nominated and confirmed, this would indeed represent Republicans moving Supreme Court appointments to the right. (The rule change passed last week doesn't cover Supreme Court appointments, but I agree that the nuclear option would be used in the case of minority obstruction.)
But is it the filibuster preventing the confirmation of a Supreme Court justice who would replace the Constitution with Atlas Shrugged? Of course not. As happened to Robert Bork, Barnett's history of extremist and immensely unpopular opinions would ensure defeat by any Democratic controlled-Senate. And even if Republicans controlled the Senate, would a Republican president nominate someone explicitly committed to the premise that Social Security and Medicare are unconstitutional, although this would be a political disaster and a Supreme Court that so ruled would finish the Republicans as a national party? It's very unlikely. It's simply not the case that without the filibuster a president will have unlimited discretion over Supreme Court nominees.
3. But Isn't the House of Representatives Terrible?
Dana Milbank of The Washington Post laments the nuclear option, because in the last year the Senate has achieved more because "Senate rules required the majority party to win votes from the minority." But this argument is ahistorical; the House being more dysfunctional than the Senate is extremely unusual, and John Boehner notwithstanding the top-heavy, majoritarian structure of the House has almost always been more conducive to legislative action. In addition, it's senators' need to appeal to statewide rather than more local constituencies, not the filibuster, that pushes the Senate towards somewhat greater moderation. If you think the House is dysfunctional now, imagine a House in which radical House Republicans had a veto over legislation supported by a majority of the legislative body. The Senate would have easily raised the debt ceiling in a majority vote, but if the House had the Senate's bad rules the world economy would have blown up.
4. Liberal Sentimentality about the Filibuster
Some liberal writers whose work I respect enormously have an attachment to the idea of the filibuster that I find frankly unfathomable. For example, the eminent legal scholar Geoffrey Stone argues that the nuclear option is "a sad day for America." But like most such arguments, his defense of the filibuster exists entirely in the abstract, with no attempt to grapple with the actual effect of the filibuster on American politics. In what is always a bad sign, Stone begins by invoking the Frank Capra film Mr. Smith Goes to Washington, which makes about as much sense as invoking Henry V to argue that monarchy is preferable to democracy. More unfortunate is that Stone does not depart the realm of the Hollywood tear-jearker to consider how the filibuster has been used by the actually existing United States Senate. Stone does not identify any example of the filibuster being used to protect an oppressed minority, presumably because as far as I can tell there aren't any. Nor does he deal with the frequent use of the filibuster to obstruct federal civil rights legislation, a much more representative use of the filibuster than Jimmy Stewart's stand for the little guy.
The depiction of the filibuster in Mr. Smith Goes To Washington is a nearly precise inversion of how the filibuster actually works. Far from protecting the interests of powerless minorities, the filibuster in practice is far more likely to allow powerful, overrepresented minorities like segregationist and business interests to thwart legislation intended to protect oppressed minorities. The Republican blockade of Obama's judicial and executive nominees is very much consistent with this tradition, which is why the use of the nuclear option was a clear victory for progressives.
