In Praise of Constitutionalism Posted by Michael Signer

In a snotty WaPo article today, the writer talks about how self-congratulatory the Mod Squad was at the press conference announcing the filibuster compromise.

I find this grating and annoying.  I watched the press conference last night.  I thought it was one of the few moments in the last few years where Congress elevated itself to the kind of considered, statesmanlike conduct I, for one, grew up with as a default expectation for public servants.  And -- I'm not ashamed to say -- the deal made me proud to be an American, especially when critics like Vladimir Putin are attacking us as anti-democratic.

For several years, I was a doctoral student in political theory and, like any grad student, suffered through the agonies of the pre-dissertation, and then dissertating, life.  A lot of it was sheer drudgery, reading stuff you didn't want to read because nobody else wanted to read it, either. 

One of the exceptions, however, was work like Hannah Arendt's On Revolution, which provided me with some hope that there could be a practical politics that united thoughtfulness, progress, and vision.

Arendt thought that, as a general matter, politics was defined by pettiness and temporal spasms of partisanship.  However, times of constitution-making -- when nation-states are actually forged by real people, thinking and working together in real time -- draw out the best in us. 

One example was the American Constitution, of which she wrote:

[I]t was made by men in common deliberation and on the strength of mutual pledges.

So, I was watching the whole filibuster mess with some suspense:  would political, or historical, thinking win out?  If enough Senators decided that the nuclear option actually was a fundamental reworking of our constitutional design, statesmanship would emerge. 

But if enough -- like the rapacious, unprincipled Bill Frist -- convinced themselves that short-term political victories, and losses, were all that mattered, then statesmanship would stumble.

In the end, enough Senators feared a slippery slope toward simple majoritarian rule in the Senate -- and then a jumble of increasingly plebiscitary politics -- that the filibuster was saved. 

In this environment of tension, suspicion, and simply bad odds, I thought there was something existentially moving about the press conference.  I was struck by how many times the members of the Mod Squad used the word "trust" -- I think every single one did.  And they weren't sanctimonious about it. 

Just as Arendt observed about the Founders, who relied on "mutual pledges," these Senators had no choice but to depend on trust, an ethereal mixture of interaction and emotion, rather than parchment and law.  They were flying without a net. 

It must have been scary for them, actually -- each is worried about bucking the fundamentalist wings of their respective parties, and they all must know that the tenuous legalism of the deal -- filibusters are still allowed in "extraordinary" situations -- will not withstand a Supreme Court fight.

The evanescence of trust made their reliance on it all the more profound.  Because there was real risk there, there was courage, too.

Senator John Warner -- my Senator -- was instrumental in the victory, and his words contain everything:

"What would happen to the Senate if the nuclear option was done?"

This was brave, constitutional conduct.  It showed that our legislators, for a day at least, raised their heads above the smoke of battle, and tried to imagine the republic our children will inherit. 

Comments

[J.]

Brave, constitutional conduct or appeasement pushing off the confrontation to another day? It's hard for me to see the benefits of Frist getting his wrist slapped in return for seeing 3 really conservative judges get to levels where we don't really want to see them. To me, it's like the classic defense funds strategy - ask for twice of what you need, settle for half, you win. The moderate Repubs won, and it may be that the conservative Repubs will be pushing again very soon. So is this "peace in our time?" Or just a false victory?

[Cal]

What J said.

We give them 3 extreme nominees and the Repubs promise to behave themselves in the future. If you can't fillibuster a reactionary like Priscilla Owen -- who made even Gonzalez uncomfortable! -- then the fillibuster is essentially dead.

Suzanne and others on this site have said that, when it comes to foreign policy, diplomacy for the sake of diplomacy is foolish, since it's results that matter. It's strange that you would argue the contrary when the issue is the judiciary.

Compromise for its own sake is not "statesmanship."

[Stygius]

I agree that that was a lousy WaPo article.

I disagree that this was compromise "for it's own sake." It's a compromise that protected a key senatorial prerogative. So a few lousy judges get through while the Democrats concede very little? Big deal. You'll notice that despite all the agonizing about vacancies on the bench, Bush has been making very few nominations during this. He's been waiting to see how it would pan out. If this compromise hadn't taken place, just imagine the weirdos that would have come out of the woodwork for a spot on the Federal bench. Does a Chief Justice Clarence Thomas appeal to you?

Now, the White House will have to think twice about all of this. It is a great victory.

In terms of partisan politics, this compromise is a tremendous humiliation for Bill Frist. It shows that in the end he didn't have the authority or power to push this through. He wasn't just slapped on the wrist, he was put in his place -- and about time, too. Frist has built his political future on overturning the judicial filibuster, and now a small coalition has destroyed it.

That alone is something to savor.

[Mike Signer]

Stygius -- bravo, I agree. I think that the relative grace, humility, and generally impressive tenor of the press conference makes Frist, in contrast, look like a fanatic. Progressives ought to seize on this reverse momentum for him and cement him into that frame. Americans don't want a fanatical leader as the heir apparent to Bush, I don't think. This makes Frist look like a petit tyrant, tinkering with the Constitution, which Americans *really* don't like. And I think progressives could potentially seize the high moral ground to be the party of protecting the Constitution.

That, and the filibuster is actually saved. That's another consequence of the gravity and grace of the press conference. Conservatives won't be able to yank the filibuster with a rules change this fall now, not without stirring considerable angst in the mainstream media. It's not a perfect win, but it's a win -- and not in a partisan sense.

[Barry]

Stygious: "I disagree that this was compromise "for it's own sake." It's a compromise that protected a key senatorial prerogative."

What worries me is that there were, what - 47? GOP Senators who were totally willing to trash that senatorial perogative, and less than 10 who thought otherwise. The overwhelming majority of the GOP senators were willing to trash the classic differentiator between a Senator and a Representative - some individual ability to block things. They were willing to move to a Senate in which 50 votes plus the vice president's tie-breaker ruled utterly, and the minority had no voice whatsoever.

That's a very fragile thing, and the moderates didn't even stop it - they postponed it.

[tristero]

"each is worried about bucking the fundamentalist wings of their respective parties..."

Who qualifies as a "fundamentalist" in the Democratic Party? Ted Kennedy? Al Gore? Howard Dean? Al Franken? Arthur Schlesinger? Ted Sorenson? Mike: these are all garden variety liberal moderates that would be considered part of the political mainstream but for James Dobson's and Rush Limbaugh's very successful crusade to demonize them.

As for the genuine left - Michael Moore, Gore Vidal, and Noam Chomsky, for example - dollars to donuts they aren't registered Democrats. And even if they were, you know as well as I that most Democrats loathe their politics. They have no power. By contrast, an extremist like Tom DeLay has enormous power.

Fact: there are no radicals or fundamentalists who are influential in the Democratic Party.

By contrast, the people running this government are the intellectual and political heirs of the John Birch Society, Father Coughlin, and General Curtis Lemay. They are the only fundamentalists with political power in the US. Arendt would have been appalled by them.

Those of us who advocate no compromise with such scoundrels are trying to prevent the consolidation of an ultra-rightwing takeover. Please wake up, Mike. This isn't poli-sci class where you know how history will play out. We are in the middle of a serious crisis and the fact that the nuclear option was averted last night does not, in any way whatsoever, lessen the dangers.

(As for the fuzzy good vibes at the press conference... I have negotiated hundreds of difficult deals in my life. Good vibes mean nothing. What matters is whether agreements are honored. The present batch of Republicans, including McCain, have proven themselves time and again to be a singularly untrustworthy lot.)

[MNPundit]

Exactly. If the GOP senators honor the deal it's a win. If not, loss.

One of the most disturbing things I've seen out of this is something Josh Marshall posted that one of his readers saw on Hardball. I know this is a foreign policy blog, but bear with me:

MATTHEWS: Social Security, do you think the president‘s plans for some kind of personal accounts has a better shot now?

GRAHAM: It has a shot versus no shot. And watch this group of 14 to come out with some deal for Social Security.

MATTHEWS: Really?

GRAHAM: Just keep watching.

My response? Uh-oh. Fucking sellouts.

[Don Swift]

The compromise was important because it slowed a movement led by right-wing populists ( like Coughlin and McCarthy) to transform the Senate into a version of the House, where the minority has become all but superflous. Ever since the Gingrich fiorebrands started entering the Senate, the has been underway.

In a cultural sense, the term Democratic fundamentalist might have some meaning. In other terms, no. Maybe that is part of the Democrat's message, they seem to offer no alternative that will contribute to the well-being of the average American family.

I would add that Mrs. Clinton might not be qualified as a Democratic fundamentalist in a cultural sense. If she would champion health care and child cre for women who decide to go full term with a pregnancy, she may be able to shed such a label.

Don

[MNPundit]

I'd say the alternative has to be "Less (Catastrophic) Risk for the Individual" and a "Right to Individual Privacy." If you do those two things, so many other things fall into place from social security, to saftey standards in the workplace and environment, to effective law enforcement to civil liberties, to reducing deficit spending and foreign debt. I'm sure you could extrapolate that into the proper foreign policy as well, but it's extremely difficult for me to articulate those things well right now so I'll have to get back to that.

But how to frame that whew, that's pretty tough.

[Stygius]

Barry,

The overwhelming majority of the GOP senators were willing to trash the classic differentiator between a Senator and a Representative - some individual ability to block things.

Yes it is, a lot of senators were cowed by this gambit, all the more reason to celebrate the ability of a few dissenters to make a difference. Many who didn't like it were still willing to vote for it. All the more reason to be glad this compromise was struck, and that it demonstrates that just having a majority in the Senate doesn't mean you can do what you want (e.g., the US House).

Democrats had to concede very little to get this through. The Republican compromisers got what they wanted too -- the preservation of the judicial filibuster. The dissenters want to preserve it. In so doing, they fragmented the GOP in the Senate. Remember, this wasn't a "Republican" or "Democrat" maneuver. It was a small, minority coalition of senators.

Through this whole thing, Bill Frist kept claiming he had the votes. In the end, he didn't. He never had the votes. He has been made to look weak and foolish; his credibility won't come back from this one.

The likelihood that these GOP senators are suddenly going to turn around and try to destroy the filibuster is mistaken. This isn't about sneaking Priscilla Owen a vote in order to kill the filibuster later. Unless Democrat compromisers egregiously abuse the agreement, it will be impossible for the theocons to convince McCain & Co. to go back on the agreement.

Bill Frist has just been cast to the bottom of a very steep hill. What are the oddds he will seriously try to climb it again, knowing he doesn't have the votes?

[tristero]

Don Swift,

I don't understand what you could possibly mean by in a cultural sense, a Democratic fundamentalist might have some meaning.

"Fundamentalist" has a very specific meaning. It refers to a certain tradition of American evangelist. It is used colloquially (and badly) to refer to extreme religious conservatives of any religion, especially those who engage in overt political activity of a radical nature. Here, Mike is using it metaphorically to refer to I'm not sure exactly what, but I'm guessing as a synonym for a deeply committed political radical of either the left or right.

Certainly, "Fundamentalist" fits people Tom DeLay and Rick Santorum in a metaphorical and colloquial way. I cannot think of a single Democrat for which the term is apt.

If Mike meant, perhaps, "extreme partisan" when he said "Fundamentalist," then he should use that word. Because I, for one, am no fundamentalist and I strongly believe that this compromise was one more pointless capitulation to rightwing extremists.

Nothing has been delayed in terms of a Senate rightwing takeover. First of all, it's already happened or there wouldn't have been a reason for this kind of action. In addition, due to the Democratic capitulation last night, at least three extremist judges who have no business having lifetime appointments are about to be confirmed. Some "compromise."

And yes, calling Frist's bluff would have been better. And If the Democrats lost, then the radical right in the GOP would simply have one less fig leaf left to hide behind.

[Mike Signer]

I'm trying to decide how much I agree with Tristero's thoughtful points. Here's the first definition in the dictionary of fundamentalism: "1. A usually religious movement or point of view characterized by a return to fundamental principles, by rigid adherence to those principles, and often by intolerance of other views and opposition to secularism."

I thought that Howard Dean and most of our progressive interest groups are easily defined by "rigid adherence" to "fundamental principles" and by "intolerance of other views." I think that you're right that we couldn't fairly characterize most Democratic Senators that way, but then there are so few left. Who are the prominent progressives who echo the thoughtful, take-the-best-from-both-sides approach of a McCain or a Hegel? That's what I'm looking for; my use of "fundamentalism" alludes to the wing on the left that saw the filibuster, and Patricia Owen, as cause for outright war. To be honest, Owen isn't going to turn the country into hell, as the Fifth Circuit is already pretty bad anyway (see Legal Fiction at http://lawandpolitics.blogspot.com/
2005_05_01_lawandpolitics_archive.html#111690095821266545).

[tristero]

"This isn't about sneaking Priscilla Owen a vote in order to kill the filibuster later."

You are going have to do better than merely assert that the Republicans can be trusted now. Off the top of my head, I can think of, say, 10 previous incidents which should make it clear to anyone that the GOP cannot be trusted to park a car, let alone to avoid pulling the nuclear option:

1. Interpretation of UN Resolution 1441
2. The Senate Permission to Go to War Resolution.
3. The WMD's which aren't in Iraq.
4. Iraq will be a cakewalk.
5. The double crossing of Ted Kennedy on Medicare.
6. The Medicare Bill negotiations.
7. The Lying about the use of torture in Gitmo, Abu Ghraib, and elsewhere.
8. The Schiavo Farce.
9. Cheney's Energy Commmission.
10. The renomination of judicial candidates that were already rejected once.

Your turn, my friend.

[tristero]

There are serious problems with that dictionary definition, Mike, not the least of which is the use of the word "secularism," which is a whole other can of worms.

Fundamentalism was (past tense) an American evangelical religious movement that grew from a group of 19th century pamphlets called "The Fundamentals." Bryan was, if I understand it correctly, not so much a Fundamentalist as a defender of Fundamentalism. In any event, Fundamentalism went into decline after Scopes.

The American poltical/religious movement that sprang up in the 1970's was called Fundamentalist by the rest of us but strictly speaking, it wasn't. It was far too involved with politics but the term stuck.

Today, the Pat Robertsons and Jerry Falwells of the world are political figures first. Their religious ideas are empty that many evangelicals are more embarassed by them than not. They are the equivalent of the Islamists in Islam and therefore I label them "Christianists," which captures the notion that they are merely adopting the trappings of religion for political gain. I think that is more accurate than "Fundamentalist" but won't object to this somewhat colloquial use.

The Fundamentalism Project has expanded the use of the term to decribe not only American Fundamentalism, but political/religious movements around the world, including movements that utilize symbols from Islam, Judaism, Hinduism and others. That truly is colloquial usage, like describing Wahhabism as "puritanical," but there seems to be no better word to describe the overall global trend towards the poltical use (or exploitation) of religious epression.

I have never heard of the term being used outside a context in which religion is mentioned except in the most metaphorical of ways.

My time is limited as I have to dash off to see my daughter's school concert (!) but suffice it to say that if you think Dean is a fundamentalist, then Santorum is... what? I'm at a loss for a word that adequately describes how much farther away from the mainstream Santorum is than Dean.

Dean may be intolerant of others' ideas within the Democratic Party, but he doesn't appear at Communist Party functions, the leftwing equivalent of Opus Dei, which Santorum has attended. I have not heard him speak in favor of Ward Churchill, while Santorum has introduced legislation whose sole purpose is to advance creationism in public schools. And Dean may have been offensive in his confederate flag remark, that pales to Santorum comparing a gay relationship to bestiality (and to running out of the room when his bigotry was confronted by the parents of gays).

No, Mike. You may not like Dean. That's fine; I can understand why many would not like him or even thoroughly despise. But calling Dean a Fundamentalist? No. That's wrong. And grossly unfair.

[Don Swift]

Tristero,

I've checked out your blog and agree with a great deal of it. It seems to me that we are heading toward some sort of soft fascism, and I cannot figure out how to stop it. The conservative strategists have read all best social psychologists as well as Gramsci and have figured out how to create a version of right-wing populism that will not peter out after a few years. The danger is that in combining it with extreme nationalism they may have created a monster that cannot be controlled.

I was using the term Democratic fundamentalist" in the senes it appeared in the original blog. I too am uncomfortable with it.

Political positions should still best be defined in terms of economics, view of the role of government, and whether one thinks our system needs fundamental restructuring. However, all these terms have been redefined by the Right. Now everything seems to be defined in terms of very imprecise and even false criteria. Hence, a liberal is allegedly someone who wants to dismantle American culture.

I assumed the original use of the term Democratic fundamentalist meant someone who thought all abortions are wonderful, etc. There are few such creatures xcept in the imaginations of very disturbed people.

I included my correct Http address this time. Last time, I made a mistake. The other site I wanted to identify was www.ForwardAmerica.BlogSpot.com.

[Cal]

---I thought that Howard Dean and most of our progressive interest groups are easily defined by "rigid adherence" to "fundamental principles" and by "intolerance of other views."--- Mike

The same could be said for liberal hawks like Beinart, who has called for expelling the Democratic base several times already. Centrists can be intolerant as well.

As for the fillibuster, if you can't fillibuster Priscilla Owen -- who thinks the New Deal is unconstitutional -- who can you fillibuster? Never mind that she'll be put on an already conservative court. If Bush nominates someone equally bad to another circuit, how can the Dems protest?

I'm not against compromise, nor am I for "blowing up" the Senate for trivial reasons, but if the bar has been set this low, the fillibuster is essentially dead, and the Dems sacrificed a lot to keep the semblance of democratic procedures while gutting its substance.

"Augustus was sensible that mankind is governed by names; nor was he deceived in his expectation, that the senate and people would submit to slavery, provided they were respectfully assured that they still enjoyed their ancient freedom."

-- Edward Gibbon

[Stygius]

tristero,

You continue to ignore my point, favoring an 'inevitable' conspiracy with no real evidence. This filibuster agreement does several things:

(1) It publicizes a schism within the GOP
(2) It undermines the credibility of Bill Frist, and his authority within the Senate
(3) It forces the White House to re-calculate how it selects judges, since they can't be sure it will have enough GOP senators on its side
(4) It increases the authority of the Judiciary Chairman, Arlen Specter, to resist wingnut judges - since he can argue there won't be enough support on the floor
(5) It undermines the electoral strategy of 'judicial obstruction'-ranting in the next election cycle
(6) Although several inappropriate judges will be sat, from (3) & (4) it can be argued that the judiciary as A WHOLE will not be radicalized by the White House.

Politics isn't just about parties fighting with each other. It is mostly about factions within parties fighting for control. You should be able to recognize that kind of fight when you see one. So, arguing that this is some conspiracy to seat Owen, Pryor and Brown misses the forest for the trees.

Killing off the judicial filibuster was a one-shot deal. It didn't work. Bill Frist didn't have the votes, and his claims that he will make an issue of it in the future only highlights his impotence. The fight isn't worth fighting. A minority of GOP senators have made clear to the White House that this battle isn't worth fighting.

Although the filibuster is less and less likely to used on the floor, the THREAT of it remains nonetheless. This will have a moderating effect on the kinds of nominees the White House sends to the Senate. That is more important than Priscilla Owen.

[Rick Williams]

Okay, I'm an extremist - I admit it. I believe in actual Democracy - people making their own choices in their own lives. The craziness that has been exemplifed of late in the Senate, in Congress as a whole, and in the executive branch demonstrate that representative democracy inevitably devolves into a mess. Nothing Congress has attempted to do this year was popular with the people. Tort reform - how many ordinary citizens were marching in the streets for that? Bankruptcy reform - how many of us wanted to make that more difficult? No, these were bought and paid for by the insurance industry and the credit card industry, and please don't insult us by claiming that these things were in the interest of "The People". Money rules Washington, and has for a long time. The people and our opinions do not matter there at all.
So, I am part of the new lunatic fringe, because I actually believe in Democracy. Not representative democracy, as it devolves into 'legislation for sale to the highest bidder', but real democracy - you and me thinking about stuff and deciding what is best for us.

Please have a look at http://www.revolution2008.org and the many other pro-Direct Democracy sites on the Web. We can argue about all the stupidity, partisanship, deal-making and backbiting in DC forever, or we can do something about it.

Yes, I need to get my medicine refilled before the men in the white coats come to take me away. Democracy - why the very idea!

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