The Nuclear Option and the Remaking of the Constitution

Juan Cole blogged Sunday about the relationship between what has been called "the nuclear option" and the foundations of our system of government. People have a tendency to speak rather loosely about "the founding fathers", and what they intended, but what Cole has done is something few do, actually read what those guys wrote.

Let me back up. If you've been living under a rock for the past couple weeks, maybe you don't know that Sen. Bill Frist, the Republican majority leader of the United States Senate, has been threatening to get the Senate to rewrite its rules to permit a simple majority of the Senate to approve judicial nominations. Such a rule change could be passed with a simple majority, thus eliminating the Senate tradition of the filibuster, perhaps best popularized in the film Mr. Smith Goes to Washington. The rule change is the "nuclear option", because, in changing the 200+ year-old tradition, the last barrier would be removed to what James Madison called "the tyrrany of the majority." The stated purpose of the rule change is to allow votes on the 10 out of 214 Bush federal court nominees who have not managed to get through the Senate due to Democratic filibusters. But I've got to admit that the mental image that comes to me is that of an admiral in the movie Star Wars reporting to Darth Vader that the Emperor had just dissolved the Imperial Senate, and "...the last vestiges of the old republic have been swept away."

Cole points out that the Republican rationale for what they are now calling "the constitutional option," in true Orwellian fashion, to permit an up-or-down vote on all nominees, has nothing to do with the actual United States Constitution. Furthermore, he traces the roots of the Constitution's principles in the founders' understanding of enlightenment philosophy, mixed with the ways in which they envisioned democracy working. These were embodied by Madison, John Hay and Alexander Hamilton, in what are known as The Federalist Papers, a series of public relations pieces designed to build popular support for the Constitution. Without regurgitating Cole's impressive work, the short summary is that not only are the Republican claims on this without merit, but the very idea of "the nuclear option" is precisely what the founders feared could happen without their intricately crafted balance of powers. They openly worried that one group of Americans, whether a minority or a majority, could effectively dominate the government and enact policies hostile to the interests of the rest of the nation. We all need to become familiar with the words of The Federalist Papers and the Constitution, in order to appreciate the magnitude of what could happen. For example, in Federalist #10, Madison writes "Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency."

The good news, for now, would seem to be that Frist probably doesn't have the votes to pass "the nuclear option," in spite of the Republican Senate majority. The fact that both senators and regressive activists have been all over television claiming they have the votes is at least a clear demonstration that either (1) they don't really have the votes or (2) they don't really think what they've been saying, that passing it is not a major change. If neither was true, they'd have already done it. Clearly, there are several Republican senators who still have more concern for the constitutional foundation of the republic than they have for hardball politics.

DEMOPHOENIX