Keeping Our Eye on the Ball

Liberal Oasis has identified disturbing indications that senior Democrats are willing to compromise on judicial nominations in order to avert the "nuclear option." A compromise on this issue would be tantamount to an outright defeat. The purpose of the nuclear option threat has been to intimidate Senate Democrats into lifting the filibuster. If the Dems agree to accept the proposed judges, the Republican strategy will have worked.

Such a compromise would also amount to the death of the filibuster anyway. In the future, any time a Senate Majority was being stymied, all they would have to do is say "nuclear option!" and the minority would cave. The filibuster threat would have been shown to be an empty one.
What further disturbs me about this debate is that is has become about the filibuster, not the proposed judges. This is a serious mistake, and not just because people might not care about arcane institutional rules. Sure Democrats can paint the abolition of the filibuster as just another example of the abusive Republican majority, but I worry about the precedents for the future of the Democratic position becomes "we must preserve the autonomy of the courts and the rules protecting the minority in the Senate."

Imagine this.....

The Democrats manage to preserve the filibuster in 2005 a the price of accepting more Bush judges. This effectively ends the Senate’s "advice and consent" role, and wingnut judges fill the judiciary. Another terror attack in 2007 permits Jeb Bush to eke out a win in 2008, but a faltering economy results and 10 years of party-building facilitate a Democratic landslide in 2012. The Democrats sweep into power with large majorities in the House & Senate and control of the Presidency. President Obama attempts to undo the damage of the last 12 years of disastrous Republican policies and manages to overcome relentless filibustering, but he is blocked at every turn by the conservative courts. Over a decade of packing the judiciary has resulted in the victory of the Federalist Society and the "constitution-in-exile" loonies, and they proceed to nullify every labor, environmental, and economic policy that emerges from the liberal-dominated Congress.

The Democrats are now faced with an intransigent judiciary openly defying popular will in the name of a lunatic ideology. The Democrats, after years of talking about the sacrosanct character of the courts, don’t have a rhetorical leg to stand on. They have no desire to try another court-packing plan and resist "jawboning" the judiciary, and so their bold attempt at reform accomplish exactly nothing. Frustrated by perceived Democratic incompetence, the Republicans return to power in 2016.

So I would argue that our real focus should be the substantive merits of the issue, not the process. These judges are unacceptably out of the mainstream of American society and are trying to impose a theocratic, pro-corporate vision on the U.S. In this they are good representatives of today’s Republican party, but not of America. THAT should be our position, not some abstract commitment to an independent judiciary or the filibuster.