April 25, 2005

Chaos without the filibuster?

In The Atlantic, Stuart Taylor writes from the imaginary perpective of post-election 2008 and sees disaster for the Republicans -- all following from abandoning the filibuster:
The Republican Party's stunningly swift swoon from controlling the presidency, the House, and the Senate to losing all three is rooted in what conservatives saw not long ago as their greatest triumph.

That was the use of an unprecedented parliamentary power play in April 2005 to ban filibusters of judicial nominees and the subsequent takeover of the Supreme Court by Bush-appointed justices bent on rolling back decades of liberal precedents....

With Democrats thus neutered, the Senate narrowly confirmed in near-party-line votes all of Bush's choices to succeed Rehnquist, O'Connor, and Stevens. Once on the Court, the three new justices allied with Antonin Scalia and Clarence Thomas to form the most cohesive, conservative majority bloc in seven decades....

[T]he specter of a conservative Republican steamroller taking over the judicial as well as the executive and legislative branches—and then engineering sudden, sweeping change in previously settled interpretations of the Constitution—eclipsed debate over the individual merits of the Court's decisions. A lot of voters found the whole business scary.
Stuart's nightmare scenario has the Court suddenly overruling all sorts of cases -- bringing back "The Constitution in Exile" and so forth. Is the filibuster all that keeps us from tumbling into a chaotic, frenzied remaking of constitutional law? Supreme Court nominees would still need a majority vote in the Senate, and surely at least some Republican Senators would worry about extreme Justices, if for no other reason than the effect it would have on the party's future. The new Justices themselves would be wary about excessively disrupting settled expectations. And don't be so sure that Justices Scalia and Thomas would not see the value of adhering to precedent. In what is regarded as one of Thomas's most extreme federalism opinions, his concurring opinion in United States v. Lopez (which struck down the Gun-Free School Zones Act), Thomas wrote:
Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.
So Stuart's scenario strikes me as the opposite of David Brooks' overly rosy prediction of how things would play out if Roe v. Wade were overturned (which I critiqued here). Stuart's exaggerated picture does not adequately take into account how other players in the system would respond at each step.


Anonymous said...

"Sudden, sweeping change in previously settled interpretations" drives voters into an absolute tizzy. If it didn't, we would never have elected President Willkie.

Too Many Jims said...

"surely at least some Republican Senators would worry about extreme Justices, if for no other reason than the effect it would have on the party's future."

I would hope so, though the names you might mention are some of the same ones who apparenty will have their arms twisted on the "nuclear option" vote. If they cave to the President et al on that issue in light of the current public opinion, I do not see how they could not cave on individual judges. As Brooks said, if Republican Senators who love the institution turn back now from the nuclear option "their abortion activists will destroy them."

That said, you raise a good point about jumping to conclusions regarding how Justices will treat precedent.

Anonymous said...

Summarizing the two things I get from this post: First, this could come back and bite the Republicans in the butt, one way or another. Do they think they will control the Senate and White House forever?

Two, upon reaching the Supreme Court, judicial nominees don't always rule the way they did on lower benches. Democrats and liberals (as well as everyone else) should get some comfort from this. Blackmum was appointed by Nixon, for heaven's sake!

Mister DA said...

And Dwight Eisenhower has been said to condisder Earl Warren his biggest mistake. On the other hand, what, exactly, makes Taylor think a majority of the people who actually vote whould think rolling back the last 40 or so years of Supreme Court jurisprudence would be a bad thing?

Cal85 said...

I'm with Mr. Morris: who is it that thinks that voters would object to prayer at graduation ceremonies? In fact, Taylor's article relies on an exceedingly unlikely hypothetical, that conservative voters on abortion would find Republicans not conservative enough and not vote, although I am not aware of any other issues where this has ever happened.