So Senator Reid and the Democratic majority in the Senate has decided to use a sketchy political maneuver to end the 60-vote tradition for confirming judges. The purpose is to pack the DC Circuit, which reviews and constrains executive branch action, and to distract from Obamacare. Taken in itself, it isn’t that weighty. The filibuster is just a political custom, after all, and not the most fundamental one.
The last days of the Roman Republic were also marked by an escalating series of abuses of political traditions. The censor used his old-timey power to perform sacrifices and suspend public business while he determined if the omens were right as a tool to block votes that were going to go against his faction. Tribunes used their tribunate veto, which had before only been used to block the Senate, to veto other tribunes activities in the assembly of the people. Men started to seek office for the criminal immunity it allowed. Politically-motivated prosecutions became common. Offices were extended beyond their normal term of years. Constitutional reforms were proposed and even enacted because they helped the agenda of some party boss, only to be overturned when his power faded.
All this was bad enough. Eventually other Roman customs went by the wayside too. Faction leaders had wars declared to replenish their purse and burnish their popularity. Sulla and Marius marched on Rome. Caesar crossed the Rubicon.
The Roman Republic fell. It took about a century.
In our day the imperial presidency has expanded its prerogatives continuously since FDR. Both Bush and Obama have pushed the bounds of Presidential powers abroad. The President’s domestic powers have also increased. The current President’s has announced legislative decrees in his own signature legislation.
Some later President will announce them in legislation he didn’t enact.
Significant use of the courts to push social change against the popular will started in the 1950s. That led to the politicization of the courts. Justices started being nominated specifically because of their ideological views. In the 1980s, a new wrinkle was introduced–Bork was borked–the Senate refused to confirm his nomination on ideological grounds. Naturally enough. The inevitable result of nominating partisan justices was partisan refusals to confirm justices. The process spread to the appellate courts during the first Bush and Clinton administrations. Under the second Bush, his political opponents escalated the scale on which they refused to confirm judges and initiated the use of the filibuster for judges for the first time–they were able to extract increased concessions as a result. Under Obama, the Republicans have reciprocated. Now the Democrats in the Senate have taken the next logical step–ending the filibuster for judges. Next will be outright court packing schemes (transgressing the taboo that was established under the second Roosevelt) or else judicial impeachments. The impeachments won’t be blatantly and purely political at first. They will just be . . . sketchy. On the edge of what had previously been understood to be permissible. That’s only at first, of course. Or jurisdiction-stripping statutes will start to become enacted wholesale, and Congress will start to use its funding power to good effect. Or the President will start to launch criminal investigations of inconvenient judges. Why not? Indeed, the escalation has already begun. The Republicans have responded by starting to insist on roll calls for anything that happens in the Senate. Which is technically within the rights under Senate rules, but is in practice an abuse, since the rules weren’t meant to gum up all activity.
Meanwhile, in the legislature, a number of long-standing accommodations and practices have gone by the way side in the last decades. In the last years, the Senate has refused to enact a budget. The House has repeatedly threatened to shut down government. The Republican House has also repeatedly gone to the edge of a debt crisis by refusing to raise the debt limit, which heretofore had been a merely ministerial act. They have had some provocation. Obamacare was the first major domestic legislation passed on a party-line vote. It was passed used the dubious and novel ‘deem and pass’ maneuver as a way of circumventing election results in Massachusetts.
At each escalation, the other party must either respond in kind, respond in kind and add its own escalations, or else retaliate so badly that the escalating party is shocked into repentance (or destroyed). If the other party doesn’t escalate, they get put out of business by sheer Darwinian logic. No one can afford to bring a knife to a gunfight. If an abuse is small enough in itself to not crush the other party for not adopting it, then more abuses are added, both because the original processes that generated the initial abuse continue, but also because the failure to respond to the first abuse invites more abuse. Weakness is contemptible. Often reciprocating an abuse isn’t enough. Take the filibuster manuever, for instance. If it succeeds at packing the DC Circuit or other circuits, Republicans will be able to appoint their own judges on party-line votes when they get into office, but they won’t be able to reverse the packing of the court because those judges will already be in office with life tenure. So just to return to parity, they have to escalate in turn.
The precise path that escalation will trace through the judiciary, the legislature, and the presidency is uncertain. What is certain is the destination. No matter the path, eventually the only escalation left is the resort to arms. All roads lead to Rome.
This isn’t a call to action. What achievable political program can interrupt the dynamic? This isn’t to condemn Senator Reid either. He is acting unwisely and is blameworthy, but if he refrained, that would only change the particulars of the path, not the destination.
I predict that within my own lifetime I will see American elections based on widespread fraud, street violence, and military pressure–and I will see many other unthinkable political deeds besides.