The Gorsuch nomination is a barometer of the condition of our politics. It’s a toxic environment of a lack of candor and a surplus of self-serving hyperbole. The very definition of a party partisan has gone through a transformation from party loyalty to ideological conformity. Heterodoxy in the parties has given way to orthodoxy. The fever is aggravated by the dramatic rise in the stakes. The breathtaking expansion of government power has exponentially increased the consequences and opportunities for those who wish to monopolize it. So much at stake and so many true-believers. No wonder Court nominations threaten to rip the republic apart. And, by gauging the reaction of Democratic Party activists to Trump’s victory, now the same is true of presidential elections.
How did we get to this sad state of affairs? For one, let’s consider the main legacy of Progressivism: the omni-competent state, or a government of virtuosos and unlimited possibilities. The Progressives’ faith in the “expert” means the deliberations of representative assemblies are more and more replaced by the deliberations of panels of hypothetical geniuses. The assumption is that the fortunes of humanity should not be left to the petty whims of politicos not in tune with the academic zeitgeist. The most undemocratic features of our constitutional order – the administrative agencies and courts – have feasted on this prejudice. Today, regulations govern more than laws, and judges have extracted prerogatives that were previously left to state legislatures and city councils.
Their legitimacy to rule doesn’t rest on the franchise but on their self-proclaimed knowledge and wisdom. When they or their politician advance-men lose an election, intelligence is said to be thwarted.
The danger posed by such a narrow caste with pretensions to power was obvious to some. C.S. Lewis – writing at a time (1943) when Fascism was one of the popular versions of caste-rule, just as it was reified into a Luftwaffe bombing British cities – fingered the error in his essay, “The Poison of Subjectivism”. He wrote,
Many a popular “planner” on a democratic platform, many a mild-eyed scientist in a democratic laboratory means, in the last resort, just what the Fascist means. He believes that ‘good’ means whatever men are conditioned to approve. He believes that it is the function of him and his kind to condition men; to create consciences by eugenics, psychological manipulation of infants, state education and mass propaganda.
The rule of “experts” is the rule of perpetual busybodies, a class of people without second-thoughts. Humility doesn’t appear as a defining characteristic. Leave it to Friedrich Hayek, though, to bring them down to
earth when he stated, “No human mind can comprehend all the knowledge which guides the actions of society”. Expanding the field from a single person to a small group doesn’t much improve matters. Hayek asserts that markets, as large aggregates of individuals, know more than a small cohort of self-ordained wise-men. Failure results when power follows the false assumption that all pertinent knowledge is concentrated in a few.
Hayek’s lesson never caught on with our modern Progressives. The power of the centralized authority in the federal government, as gauged in 20th century federal outlays through Republican and Democratic administrations, resembles a ski slope — or, as Bob Hope would have said, his nose. It’s proof, once you start this kind of thing, that the government becomes a perpetual-motion-machine almost immune even to the best of intentions of those wishing to restrain it.
The incline continues into the new millennium in federal spending per household. The dip in 2009 was due to the end of many TARP bailouts.
The federal government’s hyperactivity has distracted it away from its core Constitutional responsibilities like defense and managing immigration in favor of crusades like inflating our energy bills, directing our choice of light bulbs, a national sanctioning of sodomy as the basis for marriage, imposing a national license to take prenatal life, and dictating your elementary school’s bathroom policy. It’s so ludicrous, but nonetheless a sign of the times. Increasing federal power has intensified the battle over who’s to man (or woman) the federal parapets. Every election and Supreme Court appointment is freighted with dire potentialities.
The intensity of modern political battle has weeded out the faint-hearted and those lacking the zeal of the true-believer. A 2014 Pew Research Center study of party registrants illustrates the growing ideological polarization of the two parties. As they found,
The overall share of Americans who express consistently conservative or consistently liberal opinions has doubled over the past two decades from 10% to 21%. And ideological thinking is now much more closely aligned with partisanship than in the past.
The chart shows a widening rift in 2014 in ideological purity among the parties’ rank-and-file.
Or, take a look at this chart from the same study. The mountain peaks for the Democrats (blue) shift to the left as the peaks for the Republicans (red) move right.
The same phenomena shows up in the halls of Congress (below). In the 93rd Congress (1973-4), there existed liberal Republicans and conservative Democrats. By the 112th Congress (last bar graph below), they’re as extinct as woolly mammoths.
The party bases are uniformly polar opposites, and its reflected in the two Congressional caucuses. The leavening of other voices is gone. For nominees like Gorsuch, the Democrats’ howling base will push any Senator with a “D” after their name into rabid opposition.
Even the definition of “moderate” has shifted. Today’s moderate Democrat is only interested in some restraint in the party’s abortion blank check. Other than that, the vast majority are in lock-step with Mother Jones and the rest of the left-wing hive. Not good for any Republican Court nominee … unless a Republican president commits political suicide by presenting a choice who’ll gain the editorial board endorsements of Mother Jones and The Nation.
Don’t get me wrong. I’m not decrying the vanishing “moderate” in both parties. It’s one thing to to be moderate in temperament, quite another to be moderate in your thinking. All-too-often the moderate thinker has a mind that resembles an attic. In it one finds a collection of mental bric-a-brac. Lying around is the anachronistic foolishness of grandma’s time alongside some of more recent vintage – all thrown up there to be accessed for the production of inane pronouncements.
But these “moderates” serve the purpose of forcing the core of both parties to come together to make political sausage. Their presence makes the art of governing easier, even if, as is more likely, the result is a continuation of the non-stop march to social and fiscal ruin. Remember the old adage of Republicans as caretakers of the Democrat-engineered welfare state?
Yet, the consequence of the disappearance of the muddled middle is no-holds-barred political war on nearly everything and in nearly every venue, including Supreme Court nominees before the Senate. The writing was on the wall when Robert Bork’s name came up in 1987. Ted Kennedy manufactured party opposition with the now-familiar chant, “He’s out of the mainstream”. Honestly, the “mainstream” for Ted is the blue hump in the previous chart’s last bar graph. Qualifications be damned; for the true blue like Kennedy, the ramifications are too important to be left to quaint considerations like “qualifications” and “bi-partisanship”.
After pioneering ideological reasons for blocking a Supreme Court nominee, the Democrats didn’t want to push their luck and swiftly approved Bork’s replacement, Anthony Kennedy, shortly thereafter.
In today’s political total war, everything is enlisted for the cause. The older self-restraint became the first casualty. Take for instance the filibuster. Talking a bill to death ended in the House in 1842 when the House became too large a herd to corral for meaningful work. It persists in the Senate, but rarely used for federal judicial nominations.
Here’s where it gets tricky for the Senate. There’s two types of Senate filibusters with different cloture (end debate and go to a vote on the issue at hand) requirements. To end a “legislative” filibuster, a three-fifths (60) vote is required by Rule 22. Ending a rules-change filibuster demands a higher threshold of two-thirds (66) … until Harry Reid in 2013.
To clarify, the old claim that it takes a vote of 60 to approve a nomination is inaccurate. A majority is required to approve a nomination. It’s just getting to the consenting vote that presents the problem. 60 votes are required to end debate (cloture) and proceed with the vote on the fate of the nominee.
As majority leader, Reid sidestepped the rules for ending debate (cloture) by motioning that Rule 22 requires a majority vote for cloture. Of course, Rule 22 says no such thing. The presiding officer rejected Reid’s intentional misreading of Rule 22. Having worked all this out beforehand in the Democratic caucus, Reid appealed to the whole Senate who voted to accepted his interpretation of Rule 22. A majority of Senators – all Democrats – voted to accept his reading of the rule in spite of its plain language. This is the “Reid Rule”, a method to change the rules of the Senate with only a majority vote.
Watch Senators Reid and the Republican leader McConnell speak to the matter in 2013.
Prior to the Reid Rule – or maneuver if you will – it was next to impossible to alter the operations of the Senate by changing the rules. Tooth fairies were more real than a 66-vote for cloture. Hellbent on getting Pres. Obama’s judicial choices past Republican opposition, Reid paved an interstate through any road blocks to his desired end: Pres. Obama’s goal to pack the courts with “living Constitution” wunderkinds.
A Progressive in a black robe is a dangerous person – dangerous only in a political sense, that is. A Progressive is impatient to change things and regards the Constitution, laws, and any stricture as wet clay to be molded to that end. One wonders why we should even bother to publish or put anything in writing. Separation of powers? What separation of powers? The delineation of powers in Articles I, II, III was made pointless. Applying the law in cases morphed into boundless interpretation following a witch’s brew of allegedly modern circumstances. The courts became super legislatures following penumbras rather than law. The possibilities are only as limited as a judge’s imagination.
Control of the courts, all of a sudden, became a high-stakes game. Everyone knows it. A state’s plebiscite to define marriage in a manner familiar to anyone going back to Emperor Justinian and further to Hammurabi – and maybe even to Lucy, our prehistoric ancestor in East Africa – could now be interpreted by jurists as something akin to the Nuremberg Laws. The beginning of life is not be defined by the people’s elected representatives but rather a majority of nine life-time appointees on a judicial panel in Washington, D.C. Conceivably, nothing is outside the purview of the judiciary.
With so much at stake, the days were numbered for the filibuster, especially in light of the gathering around opposing ideological poles in both parties. The only modern use of the filibuster for Supreme Court appointments prior to the new millennium was Abe Fortas’s attempted elevation from Associate Justice to Chief Justice in 1968 by Pres. Johnson. It occurred at a time when liberal R’s and conservative D’s still existed. As it turned out, opposition was truly bi-partisan and Fortas had a darker side of corruption. Not only did Fortas fail in winning his Chief Justice appointment, he was forced to resign his Associate Justice seat to avoid impeachment.
The Fortas mess was an extremely rare occurrence in the history of the Senate filibuster for Court nominees. Even Clarence Thomas didn’t face one. We’d have to wait the dawn of the new millennium, after party orthodox purity was well under way, and judicial powers have raised the stakes so high, before the filibuster became a reliable weapon in ideological warfare.
The election of George W. Bush in 2000 incensed Democrats. He was considered by them to be a usurper after the hotly contested election. Immediately following the inauguration, the liberal hive was all abuzz. In January 2001, Bruce Ackerman, Yale law professor writing in The American Prospect, fearing a wave of conservative jurists, favored the Democrats’ use of the filibuster to block Bush’s judicial appointments. The judicial filibuster ball really started rolling after that.
Bush’s first 11 courts of appeal nominees never made it out of the Democrat-controlled Judiciary Committee from 2001 to 2003. To be fair, Republican majorities did the same to Clinton’s choices by 2000. Yet, widespread filibustering didn’t begin till 2003 and a slim 51-49 Republican majority. 10 appeals court choices were then blocked by Democrats with a filibuster threat. Bill Frist, the Republican Majority Leader, began to publicly talk of the “nuclear option” – ending the filibuster for judicial nominations – as Democrats’ use of the filibuster promised to be a frequent tactic.
The threat of the “nuclear option” faded after a compromise got the bulk of Bush’s nominees through in 2005. But blocking tactics without the need for filibusters continued through Bush’s second term as Democrats assumed control of the Senate in 2007.
When Republicans objected to Obama’s nominees in 2013, prior advocates of the judicial filibuster turned into vehement critics. Politics produces a bumper crop of hypocrites, and ideological zealotry sanctions a scythe to cut through anyone and anything to achieve a secular eschaton. What was done by the Democrats – invent a way to change the Senate’s rules with a simple majority and use it to end the filibuster for judicial nominations – will be picked up by the Republicans to approve an originalist on the bench.
Watch Senate Majority Leader McConnell exactly repeat Harry Reid’s 2013 maneuver to change the 60-vote threshold for cloture (end debate and vote on the nominee) in advance of the Gorsuch vote.
After this, the vote to approve the nominee follows the historical precedent of a majority to approve the nomination. The fate of Neil Gorsuch could have been decided on a simple majority vote if the Democrats eschewed the filibuster, as what happened to Clarence Thomas’s nomination in 1991. Now it’s kaput for the judicial filibuster.
One of the arguments against ending the filibuster was that the loss would put the last nails in the coffin of bi-partisan comity. News flash: comity was well on its way out since the Florida recount imbroglio of 2000.
We would see the increasing reliance on ad hominem politics occurring as credal purity came to characterize the parties. How many adherents of Hayek and Friedman still exist in the Democratic Party? Conversely, what about the standing of Keynes in the Republican Party?
The fate of ex-Democrat Phil Gramm of Texas is instructive. Gramm was a Democrat and a believer in the Laffer curve, two things that don’t comport in today’s Democratic Party. Like many such Democrats, their party’s hostility to anyone challenging the reigning statist orthodoxy drove people like them out. They became Republicans. It was a harbinger of things to come.
The Gorsuch nomination got caught up in this new political ecosystem. It’s a jungle with the courts as the new Tyrannosaurus Rex, with the administrative state in tow as clones. Their presence draws the attention of everyone.
The temperature once had a chance to cool when the state didn’t have such a large apetite. It’s different today. Control of the state is on everybody’s radar screen because the cost of playing blind and deaf may make you the meal. The stakes are too high for quaint niceties.
Maybe our chances for civility would improve if we scaled back the monster. But that would require the defeat of the Democrats’ statism. If true, a return of the Democratic Party to a more heterogeneous composition would be more therapeutic than a revival of RINO’s (Republicans In Name Only) in the GOP. Something to consider.
RogerG
Sources:
“Scalia’s Supreme Court Seat Has Been Vacant For More Than 400 Days”, The New York Times, March 20, 2017, https://www.nytimes.com/interactive/2016/02/15/us/supreme-court-nominations-election-year-scalia.html?_r=0
“The Poison of Subjectivism”, C.S. Lewis, 1943 essay. It can be obtained in Microsoft Word format here: https://calvin.edu/search/?q=the+poison+of+subjectivism&btnG=&site=calvin&client=calvin&proxystylesheet=calvin&output=xml_no_dtd&sort=date%3AD%3AL%3Ad1#gsc.tab=0&gsc.q=the%20poison%20of%20subjectivism&gsc.page=1
“Lewis & the Omnicompetent State (Part 1)”, Dr. Alan Snyder, professor of History, Southeastern University, Pondering Principles, Nov. 7, 2015, http://ponderingprinciples.com/2015/11/lewis-the-omnicompetent-state-part-1/
For a fuller treatment of Hayek’s knowledge problem see “The Use of Knowledge in Society”, Friedrich A. Hayek, The American Economic Review, Sept. 1945. A free copy can obtained here: https://fee.org/articles/the-use-of-knowledge-in-society/
“The State of Disunion”, Lucas Rodriguez and Spencer Segal, Stanford Political Journal, Nov. 2, 2016, https://stanfordpolitics.com/the-state-of-disunion-901513b6b356
“Political Polarization in the American Public: How Increasing Ideological Uniformity and Partisan Antipathy Affect Politics, Compromise and Everyday Life”, Pew Research Center, June 12, 2014, http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/
“Polarization in Congress has risen sharply. Where is it going next?”, Christopher Hare, Keith T. Poole, and Howard Rosenthal, The Washington Post, Feb. 13, 2014, https://www.washingtonpost.com/news/monkey-cage/wp/2014/02/13/polarization-in-congress-has-risen-sharply-where-is-it-going-next/?utm_term=.e7cc91347bef
“A Filibuster on a Supreme Court Nomination Is So Rare It’s Only Worked Once”, Elizabeth King, Time, 2/8/17, http://time.com/4659403/neil-gorsuch-filibuster-abe-fortas/
“Filibuster and Cloture”, U.S. Senate website, https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm
“Filibuster”, wikipedia.org, https://en.wikipedia.org/wiki/Filibuster#United_States
“Nuclear option”, wikipedia.org, https://en.wikipedia.org/wiki/Nuclear_option
“U.S. Senate goes ‘nuclear,’ changes filibuster rules”, USA Today, 11/21/2013, https://www.usatoday.com/story/news/politics/2013/11/21/harry-reid-nuclear-senate/3662445/
“George W. Bush judicial appointment controversies”, wikipedia.org, https://en.wikipedia.org/wiki/George_W._Bush_judicial_appointment_controversies
“How Schumer turned against a filibuster he once tried to save”, Reid Pillifant, Politico, http://www.politico.com/states/new-york/albany/story/2013/11/how-schumer-turned-against-a-filibuster-he-once-tried-to-save-009838
“How 52 Senators Made 60 = 51”, Sen. Orrin G. Hatch, Stanford Law & Policy Review, March 19, 2014, https://journals.law.stanford.edu/stanford-law-policy-review/online/how-52-senators-made-60-51