The Audacity of Hope (10 page)

The irony, of course, was that such disregard of the rules and the manipulation of language to achieve a particular outcome were precisely what conservatives had long accused liberals of doing. It was one of the rationales behind Newt Gingrich’s Contract with America—the notion that the Democratic barons who then controlled the House of Representatives consistently abused the legislative process for their own gain. It was the basis for the impeachment proceedings against Bill Clinton, the scorn heaped on the sad phrase “it depends on what the meaning of the word ‘is’ is.” It was the basis of conservative broadsides against liberal academics, those high priests of political correctness, it was argued, who refused to acknowledge any eternal truths or hierarchies of knowledge and indoctrinated America’s youth with dangerous moral relativism.

And it was at the very heart of the conservative assault on the federal courts.

Gaining control of the courts generally and the Supreme Court in particular had become the holy grail for a generation of conservative activists—and not just, they insisted, because they viewed the courts as the last bastion of pro-abortion, pro-affirmative- action, pro-homosexual, pro-criminal, pro-regulation, anti-religious liberal elitism. According to these activists, liberal judges had placed themselves above the law, basing their opinions not on the Constitution but on their own whims and desired results, finding rights to abortion or sodomy that did not exist in the text, subverting the democratic process and perverting the Founding Fathers’ original intent. To return the courts to their proper role required the appointment of “strict constructionists” to the federal bench, men and women who understood the difference between interpreting and making law, men and women who would stick to the original meaning of the Founders’ words. Men and women who would follow the rules.

Those on the left saw the situation quite differently. With conservative Republicans making gains in the congressional and presidential elections, many liberals viewed the courts as the only thing standing in the way of a radical effort to roll back civil rights, women’s rights, civil liberties, environmental regulation, church/state separation, and the entire legacy of the New Deal. During the Bork nomination, advocacy groups and Democratic leaders organized their opposition with a sophistication that had never been

seen for a judicial confirmation. When the nomination was defeated, conservatives realized that they would have to build their own grassroots army.

Since then, each side had claimed incremental advances (Scalia and Thomas for conservatives, Ginsburg and Breyer for liberals) and setbacks (for conservatives, the widely perceived drift toward the center by O’Connor, Kennedy, and especially Souter; for liberals, the packing of lower federal courts with Reagan and Bush I appointees). Democrats complained loudly when Republicans used control of the Judiciary Committee to block sixty-one of Clinton’s appointments to appellate and district courts, and for the brief time that they held the majority, the Democrats tried the same tactics on George W. Bush’s nominees.

But when the Democrats lost their Senate majority in 2002, they had only one arrow left in their quiver, a strategy that could be summed up in one word, the battle cry around which the Democratic faithful now rallied:

Filibuster!

The Constitution makes no mention of the filibuster; it is a Senate rule, one that dates back to the very first Congress. The basic idea is simple: Because all Senate business is conducted by unanimous consent, any senator can bring proceedings to a halt by exercising his right to unlimited debate and refusing to move on to the next order of business. In other words, he can talk. For as long as he wants. He can talk about the substance of a pending bill, or about the motion to call the pending bill. He can choose to read the entire seven-hundred-page defense authorization bill, line by line, into the record, or relate aspects of the bill to the rise and fall of the Roman Empire, the flight of the hummingbird, or the Atlanta phone book. So long as he or like-minded colleagues are willing to stay on the floor and talk, everything else has to wait—which gives each senator an enormous amount of leverage, and a determined minority effective veto power over any piece of legislation.

The only way to break a filibuster is for three-fifths of the Senate to invoke something called cloture—that is, the cessation of debate. Effectively this means that every action pending before the Senate—every bill, resolution, or nomination—needs the support of sixty senators rather than a simple majority. A series of complex rules has evolved, allowing both filibusters and cloture votes to proceed without fanfare: Just the threat of a filibuster will often be enough to get the majority leader’s attention, and a cloture vote will then be organized without anybody having to spend their evenings sleeping in armchairs and cots. But throughout the Senate’s modern history, the filibuster has remained a preciously guarded prerogative, one of the distinguishing features, it is said—along with six-year terms and the allocation of two senators to each state, regardless of population—that separates the Senate from the House and serves as a firewall against the dangers of majority overreach.

There is another, grimmer history to the filibuster, though, one that carries special relevance for me. For almost a century, the filibuster was the South’s weapon of choice in its efforts to protect Jim Crow from federal interference, the legal blockade that effectively gutted the Fourteenth and Fifteenth Amendments. Decade after decade, courtly, erudite men like Senator Richard B. Russell of Georgia (after whom the most elegant suite of Senate offices is named) used the filibuster to choke off any and every

piece of civil rights legislation before the Senate, whether voting rights bills, or fair employment bills, or anti-lynching bills. With words, with rules, with procedures and precedents—with law—Southern senators had succeeded in perpetuating black subjugation in ways that mere violence never could. The filibuster hadn’t just stopped bills. For many blacks in the South, the filibuster had snuffed out hope.

Democrats used the filibuster sparingly in George Bush’s first term: Of the President’s two-hundred-plus judicial nominees, only ten were prevented from getting to the floor for an up-or-down vote. Still, all ten were nominees to appellate courts, the courts that counted; all ten were standard-bearers for the conservative cause; and if Democrats maintained their filibuster on these ten fine jurists, conservatives argued, there would be nothing to prevent them from having their way with future Supreme Court nominees.

So it came to pass that President Bush—emboldened by a bigger Republican majority in the Senate and his self-proclaimed mandate—decided in the first few weeks of his second term to renominate seven previously filibustered judges. As a poke in the eye to the Democrats, it produced the desired response. Democratic Leader Harry Reid called it “a big wet kiss to the far right” and renewed the threat of a filibuster. Advocacy groups on the left and the right rushed to their posts and sent out all-points alerts, dispatching emails and direct mail that implored donors to fund the air wars to come. Republicans, sensing that this was the time to go in for the kill, announced that if Democrats continued in their obstructionist ways, they would have no choice but to invoke the dreaded “nuclear option,” a novel procedural maneuver that would involve the Senate’s presiding officer (perhaps Vice President Cheney himself) ignoring the opinion of the Senate parliamentarian, breaking two hundred years of Senate precedent, and deciding, with a simple bang of the gavel, that the use of filibusters was no longer permissible under the Senate rules—at least when it came to judicial nominations.

To me, the threat to eliminate the filibuster on judicial nominations was just one more example of Republicans changing the rules in the middle of the game. Moreover, a good argument could be made that a vote on judicial nominations was precisely the situation where the filibuster’s supermajority requirement made sense: Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president—and benefits our democracy—to find moderate nominees who can garner some measure of bipartisan support. Few of the Bush nominees in question fell into the “moderate” category; rather, they showed a pattern of hostility toward civil rights, privacy, and checks on executive power that put them to the right of even most Republican judges (one particularly troubling nominee had derisively called Social Security and other New Deal programs “the triumph of our own socialist revolution”).

Still, I remember muffling a laugh the first time I heard the term “nuclear option.” It seemed to perfectly capture the loss of perspective that had come to characterize judicial confirmations, part of the spin-fest that permitted groups on the left to run ads featuring scenes of Jimmy Stewart’s Mr. Smith Goes to Washington without any mention that Strom Thurmond and Jim Eastland had played Mr. Smith in real life; the shameless mythologizing that allowed Southern Republicans to rise on the Senate floor and somberly intone about the impropriety of filibusters, without even a peep of acknowledgment that it was the politicians from their states—their direct political forebears—who had perfected the art for a malicious cause.

Not many of my fellow Democrats appreciated the irony. As the judicial confirmation process began heating up, I had a conversation with a friend in which I admitted concern with some of the strategies we were using to discredit and block nominees. I had no doubt of the damage that some of Bush’s judicial nominees might do; I would support the filibuster of some of these judges, if only to signal to the White House the need to moderate its next selections. But elections ultimately meant something, I told my friend. Instead of relying on Senate procedures, there was one way to ensure that judges on the bench reflected our values, and that was to win at the polls.

My friend shook her head vehemently. “Do you really think that if the situations were reversed, Republicans would have any qualms about using the filibuster?” she asked.

I didn’t. And yet I doubted that our use of the filibuster would dispel the image of Democrats always being on the defensive—a perception that we used the courts and lawyers and procedural tricks to avoid having to win over popular opinion. The perception wasn’t entirely fair: Republicans no less than Democrats often asked the courts to overturn democratic decisions (like campaign finance laws) that they didn’t like. Still, I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.

Just as conservatives appeared to have lost any sense that democracy must be more than what the majority insists upon. I thought back to an afternoon several years earlier, when as a member of the Illinois legislature I had argued for an amendment to include a mother’s health exception in a Republican bill to ban partial-birth abortion. The amendment failed on a party line vote, and afterward, I stepped out into the hallway with one of my Republican colleagues. Without the amendment, I said, the law would be struck down by the courts as unconstitutional. He turned to me and said it didn’t matter what amendment was attached—judges would do whatever they wanted to do anyway.

“It’s all politics,” he had said, turning to leave. “And right now we’ve got the votes.”

DO ANY OF these fights matter? For many of us, arguments over Senate procedure, separation of powers, judicial nominations, and rules of constitutional interpretation seem pretty esoteric, distant from our everyday concerns—just one more example of partisan jousting.

In fact, they do matter. Not only because the procedural rules of our government help define the results—on everything from whether the government can regulate polluters to whether government can tap your phone—but because they define our democracy just as much as elections do. Our system of self-governance is an intricate affair; it is through that system, and by respecting that system, that we give shape to our values and shared commitments.

Of course, I’m biased. For ten years before coming to Washington, I taught constitutional law at the University of Chicago. I loved the law school classroom: the stripped-down nature of it, the high-wire act of standing in front of a room at the beginning of each class with just blackboard and chalk, the students taking measure of

me, some intent or apprehensive, others demonstrative in their boredom, the tension broken by my first question—“What’s this case about?”—and the hands tentatively rising, the initial responses and me pushing back against whatever arguments surfaced, until slowly the bare words were peeled back and what had appeared dry and lifeless just a few minutes before suddenly came alive, and my students’ eyes stirred, the text becoming for them a part not just of the past but of their present and their future.

Sometimes I imagined my work to be not so different from the work of the theology professors who taught across campus—for, as I suspect was true for those teaching Scripture, I found that my students often felt they knew the Constitution without having really read it. They were accustomed to plucking out phrases that they’d heard and using them to bolster their immediate arguments, or ignoring passages that seemed to contradict their views.

But what I appreciated most about teaching constitutional law, what I wanted my students to appreciate, was just how accessible the relevant documents remain after two centuries. My students may have used me as a guide, but they needed no intermediary, for unlike the books of Timothy or Luke, the founding documents—the Declaration of Independence, the Federalist Papers, and the Constitution—present themselves as the product of men. We have a record of the Founders’ intentions, I would tell my students, their arguments and their palace intrigues. If we can’t always divine what was in their hearts, we can at least cut through the mist of time and have some sense of the core ideals that motivated their work.