The Magazine

If You Were a Democrat

Mar 28, 2005, Vol. 10, No. 26 • By TERRY EASTLAND, FOR THE EDITORS
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IF YOU WERE A SENATE Democrat, you'd filibuster those Bush judges. Yes, you would. When it came time to vote on a targeted nominee in this new Congress, you'd know the deal. You'd know that Republicans would move for cloture to limit debate, and that if they succeeded, the nominee would get an up-or-down vote. But you'd also know that, under those very useful Senate rules, they would need 60 votes to prevail, and that because the Republicans number just 55, your side would win so long as at least 41 of you hung together.

Yes, if you were a Democrat, you'd be ready to say no and no and no again on those cloture petitions. You'd filibuster the Bush nominees because you'd know that if they were actually voted on, they'd be confirmed. Each and every one of them, by majorities in the mid-to-high 50s. And then for decades those nominees would sit on the circuit courts of appeal, which, because they have the last word on all but the handful of cases that go up to the Supreme Court, are very important indeed. If those judges performed as advertised, they would disdain the living, evolving Constitution that you so admire and would decide cases in the manner of Scalia or Thomas, Bush's favorite jurists, a horrible prospect.

Of course, if you were a Democrat (and even if you were a Republican), you'd also know that some judges don't perform as advertised and that some have demonstrated an unusual capacity to "grow in office"--Washington shorthand for judges who grow less conservative. And you'd know that because they have that capacity, some Bush judges might turn out to be like, say, Souter or Kennedy, a pleasant surprise for your party. But as a Democrat, you'd know that you couldn't trust this president to put up too many Souters and Kennedys, and that you'd better be ready to say no whenever your leaders gave the signal--following due consultation, of course, with People For the American Way and the rest of the activist groups to whom your caucus has outsourced its critical thinking on all things judicial. As a Democrat, you'd know that your filibusters of circuit nominees would warm you up for the big game--the filibustering of Bush's Supreme Court picks.

If you were a Democrat, you'd know better about a lot of things said on your side. Of course you would. You'd know Schumer was a fool when he justified filibustering nominees by citing Madison's description of the Senate as a "cooling saucer," because you'd know (wouldn't you?) that the image came not from Madison but Washington, and that as he used it, it had nothing to do with filibusters, the first one of which took place only in the 1820s, and to stymie not judicial nominations, but legislation.

You'd know that the great constitutionalist Robert Byrd was speaking nonsense when he said that the Senate was "rejecting" Bush judges, because you'd know, wouldn't you, that the Senate was doing no such thing, but that a subset of the Senate, a minority made up exclusively of you and your Democratic colleagues, was engaged in a blocking action designed to prevent an up-or-down vote that, were it held, would invariably result in approval, not rejection.

And block you would, over and over again, just as you did during the last session, when you and your brilliant colleagues prevented votes on no fewer than 10 nominees. You'd keep on with this even though you'd know that the road you and Bobby and Chuck and Ted and Hillary and John decided to go down two years ago when you became the minority party had never been taken before. That is, you'd know that no Senate minority ever before had made routine use of the filibuster to block judicial nominees who would have enjoyed majority Senate support.

And you'd know that the Republicans were right when they insisted on an up-or-down vote, and that the parliamentary procedures they were contemplating using to exempt judicial nominations from the filibuster, a Senate rule that the Senate may change as it wishes, were once used by Byrd himself when he was majority leader to establish Senate precedents designed to stop filibusters and other delaying tactics. Indeed, you'd know that the record was filled with all kinds of statements by Byrd and other Democrats quite at odds with their current ones. You'd know that Ted once got up and said, "The filibuster has been the shame of the Senate and the last resort of special interest groups," and "the Senate should operate under the principle of majority rule, except as the Constitution otherwise provides," and "a simple majority is entitled to change the Senate rules." You'd applaud the hypocrisy but you might also applaud obviously sincere confessions, like Barbara Boxer's, who said just this week at MoveOn.org's "Rally for Fair Judges" that "I thought I knew everything" back when Democrats controlled the Senate and she opposed the filibuster, but "I was wrong . . . totally wrong."