“Nuclear option”? What about the courts!

“Nuclear option”? What about the courts!

By Joshua P. Preston

When Lord Alfred Tennyson wrote in his poem In Memoriam, that nature, even our own nature was “red in tooth and claw” I am sure that his thoughts were focused not on any specific ecosystem but instead on the political environment. For I do not believe anyone would argue with the statement that for an institution designed to maintain the public peace, it sure can seem unpeaceful. As the partisanship of Washington becomes stifling, the Republican Party is trying to reconcile itself with the Tea Party and the “enthusiasm gap” on the left seems to be widening into a chasm. While the Republican Party will face its own internal problems with the likes of Rand Paul and Michele Bachmann, the “enthusiasm gap” for Democrats poses its own problems and will prove just as threatening. Ignoring the effects it will have at the polls or at the grassroots, I believe the greatest danger it poses for the Democratic Party is the temptation that arises from desperation. As the Democratic majorities begin to wane, I am worried that in order to pass its last initiatives it will resort to the “nuclear option.”

The Temptation: the “Nuclear Option”

I am not going to argue that the Democrats are unjustified in their frustration over the inability to pass the initiatives it campaigned upon, a task that will no doubt be magnified by the losses suffered in the recent elections. The reason for this? The Republican Party’s use of the filibuster in the U.S. Senate. Citing the fact that the filibuster has been used more in this congress than in any other congress in history – it is in fact unprecedented – most Democrats argue that there is no reason why a “super-majority” of 60 votes should be required to pass the legislation they were elected for in 2008. Some progressive voices, like film-director Michael Moore, have even gone so far as demanding that Democrats make a final legislative push in the final months of the 111th congress. And the way to go about doing this? Through the use of the “nuclear option,” an action that would allow a simple majority to reinterpret the rules of the senate to invoke the constitutional requirement that says the will of the majority is all that is necessary to pass a bill.

For as simple a parliamentary rule, this has never been done – even when it has been threatened both sides have stepped down – and were it to be used, it would, like real warfare, establish precedent and make the “nuclear option” a legitimate weapon of political war. Effectively eliminating the filibuster, it would end the only safeguard any minority has against what some would call the “tyranny of the majority.” So how would this play out? First, it would eventually be used against the Democrats, and second, it would allow one party – and that party could very well be the Republican Party – to pack the courts and, as one Supreme Court Justice said, “legislate from the bench.”

The Immediate Blowback…

It needs to be recognized that in U.S. politics both sides are given a chance to have their turn at the wheel: George W. Bush was not the last Republican president and Democrats will not always be in power (as has already been demonstrated). And so to safeguard against any possibility of there being major rollbacks in Democratic programs, it would be irresponsible to throw the baby out with the bathwater just because some individuals are willing to play politics. In government, anything anyone does to another will eventually be used against them.

… And the Nuclear Winter:  Packed courts

Paying no attention to the consequence such the “nuclear option” would have on other issues, eliminating the filibuster means that when it came time for the president to appoint members to the courts there would be no serious checks on those being nominated – assuming individuals vote solely on party line. Just as the Republicans are holding up several lower court appointments today, it was only five years ago, when the Republican Party was the senate majority and Democrats did the same thing, tactically using the filibuster to prevent certain appointments that they believed could were unqualified for the job of interpreting the law. While the judicial branch of government is the oft-forgotten middle-child of the federal government, the power it has to change the political compass of the nation is substantial. When it comes to interpreting the law, its concreteness and real-world implications become fluid when courts judging the law according to its text and those judging according to the legislators’ intent produce radically different outcomes.

Because the U.S. Constitution does not directly create the lower courts nor does it provide any guidance for the composition of the lower courts of the judicial branch (the Constitution creates only the Supreme Court) it instead grants the authority to organize them through the congress, which it did in its first through the Judiciary Act of 1789. Besides capping the number allowed to serve on the Supreme Court (5; but this has since been enlarged to 9), this act created 13 judicial districts within the (then) 11 states of the union, each with their own district court and appellate court, the many judges of which would be nominated by the president and approved by the senate. Two centuries later, the total number of district courts have since expanded to 94 (5 of which are for territories) and includes 678 judges; the number of appellate courts have remained the same (13) but have been redistricted and expanded to include 179 judges. Each judge serves for terms of “good behavior,” which is to be read for life until they are impeached, retire or die.

Since the president has the authority to nominate judges, and the general politicization of the courts encourages presidents to nominate only those who are likely to make decisions in accordance with their own views, it is not an uncommon strategy for judges to forestall their retirement until their party is in power. Doing so allows their party to replace them with someone who holds a similar judicial philosophy. And do not get me wrong, this is as much a Democratic strategy as it is a Republican one.

With as many as 866 judges serving in the judicial branch of our government, a fraction of which should be expected to retire at some point during the president’s term, one has to recognize that this is the exact kind of issue that the filibuster should be used for. Of all things, appointments that are made for life – and it is worth noting that only 14 judges have been impeached by the House and only 7 of whom have been convicted by the senate in the nation’s history – are likely to have the highest cost to pay if a mistake is made.

So do we risk it?

Originally published in the University Register at the University of Minnesota-Morris as an Opinion piece on November 18, 2010.

Update: There were a few articles that I dug up that I thought were interesting and supplement my thoughts on the power of the courts. The first talks about the problem of precedent and the inability for lower courts to interpret the opinions of the Roberts Court. The
second is the article Michael Moore wrote calling for a final legislative push in the lame duck session.


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