As the Senate votes in Bush's long-filibustered nominees, the nuclear option
compromise is looking more rancid than reasonable. The seven Democrats who
helped broker the compromise pledged not to filibuster except in the most
extraordinary circumstances. But given the track record of Priscilla Owens,
Janice Rogers Brown, and William Pryor, I wonder how extreme a candidate has
to be before these Democrats and their seven Republican colleagues would
reject them.
Would a prospective nominee have to be caught wearing white Klan robes to
Sunday church? Having public sex with a live animal? Receiving videotaped
bribes from Don Corleone? I suppose these actions might meet the
"extraordinary circumstances" standard, but running roughshod over legal
precedents to favor the wealthy and powerful clearly doesn't.
Because the participating Democrats agreed not to filibuster Owens, Brown,
and Pryor, the public barely heard the stories of why their nominations
crossed an unacceptable line. We heard mostly the inside baseball of legal
abstractions. But their history is pretty drastic:
* Brown considers protections like the minimum wage and food safety
standards as unconstitutional intrusions on commerce, and attacked the New
Deal as "the triumph of our own socialist revolution." She'll now be able to
protect us from legal protection from her seat on the second highest court
in the land. Yet not a single Republican voted against her.
* In a dissent from her largely Republican colleagues on the Texas Supreme
Court, Priscilla Owens supported a law that allowed certain private
landowners to exempt themselves from "any environmental regulations"
inconsistent with their own land use and water quality plans. She also
argued for such draconian limits on the ability of minors seeking abortions
to get permission from a judge that her then-colleague Alberto Gonzales said
accepting her logic "would be an unconscionable act of judicial activism."
* Pryor defended Alabama's practice of handcuffing prisoners to a hitching
post under the hot sun if they refused to work on chain gangs, and urged the
Supreme Court to hold that a disabled state employee who has been
discriminated against in the workplace cannot sue the state for damages
under the Americans with Disabilities Act.
In return for establishing these judges as a new acceptable standard, the
seven compromising Democrats kept the theoretical right to filibuster. But
it's guaranteed only if they don't exercise it. They saved an abstract
principle at the price of agreeing to cave in practically every imaginable
circumstance.
The Republican participants come off even worse. True, they bucked Bill
Frist and Tom DeLay to commit the unconscionable sin of talking across the
aisle, and for this they should be honored. But if they really believed in
democracy, moderation, and the value of political consensus, they wouldn't
have demanded that the Democrats allow the appointment of judges like Owens,
Brown, and Pryor, for positions they'll keep for life. They wouldn't have
demanded that the filibuster be used only in circumstances so extreme that
they're likely to almost never happen. They would have stood up for some
kind of genuine middle ground, and not just capitulation to the raw rule of
power.
But Owens, Brown, and Pryor are now the new acceptable standard of judges
confirmed for lifetime appointments. Their acceptance invites the
Republican right to push the envelope still further. For all the talk of
moderation and compromise, and for all the protestations of right wing
spokesmen like James Dobson and Paul Weyrich, a bit more of this country's
future just got handed over to those who would leave no recourse for people
without power. The so-called moderate compromisers who made this possible
are smelling more craven than courageous right now.
---
Paul Loeb is the author of The Impossible Will Take a Little While: A
Citizen's Guide to Hope in a Time of Fear, named the #3 political book of
fall 2004 by the History Channel and the American Book Association. See
www.theimpossible.org.
