// essays //
Spring 2006
Bipartisanship is Dead, but the Democrats Don't Know It
Dov Friedman
To the surprise of no one, Judge Samuel Alito became Justice Samuel Alito on the last day in January, and the Senate Democrats went home graceful losers. Despite their concerns over Judge Alito's views, four Democrats supported his nomination, and enough others rejected the idea that Alito was radical enough to warrant a filibuster. In what has become a symbol of Republican control over Congress, the political storms that appeared to be brewing invariably became a tempest in a teapot. The political capital the Democrats saved up by supporting the brilliant, conservative, and less objectionable Chief Justice nominee John Roberts was wasted when they mounted no serious challenge to Alito.
The reason the GOP has been so successful in blocking Democratic nominees and confirming their own is that they have taken partisanship to new heights. Worse, Democrats have failed to realize that in the last twelve years, the Republicans have drastically altered the standard of permissible and reasonable obstructionism of these nominees. The Republicans gleefully watched as Democrats limited their own obstruction of both the Roberts and Alito nominations. In retrospect, the Democrats failed to adequately oppose President Bush's judges because they did not learn from the events of the 1990's and the Republicans' partisan tactics. The Democrats can claim the moral high ground for not blocking President Bush's nominees, but unfortunately it may require Republican obstruction of the next Democratic president's Supreme Court nominee for the Senate Democrats to realize the fundamental change that has taken place.
After the Democrats lost control of Congress in 1994, the Republicans conceived and executed a plan to block Clinton's court nominees. Under the leadership of the Judiciary Committee chairman at the time, Orrin Hatch, the Republicans simply refused to hold hearings for hundreds of Clinton's court nominees at both the Federal appellate level and the district level. At the time, this surprising development did not go unnoticed. Ted Gest and Lewis Lord of The U.S. News and World Report discussed this new strategy in their June 1997 article "The GOP's Judicial Freeze." They noted that whereas Congress had traditionally saved their influence and objections for a president's Supreme Court nomination, the Republicans were now seeking, and getting, a say in Clinton's lower court nominees. They cited University of Chicago law professor Geoffrey Stone as saying "it's a scandalous and stunningly irresponsible misuse of the Senate's authority." Although the strategy was criticized when it was first introduced, the Republican Congress staunchly claimed a right to block Clinton's nominees on the grounds that this was simply another way of carrying out their Constitutional duties under the "advise and consent" clause, which gives the Senate authority to confirm or reject the President's appointments.
Hatch's campaign was especially seen as a slap in the face because Clinton's nominees were generally considered quite moderate. However, these nominees were perhaps a little too moderate for some Democrats and liberal interest groups, who lamented the fact that Clinton rejected the idea of refashioning the courts to his (and their) political taste. At the time, Abner Mikva, then White House Counsel to President Clinton, affirmed the President's lack of desire for an ideological reshaping of the courts. "He doesn't want to make a federal bench in his image. What he really wants is a high-quality bench that will do the right thing regardless of ideology." The fact that Mikva made such a statement shows that his party was still trying to win over Republicans on philosophical, not political grounds. Democrats, from President Clinton on down, had not realized that the Republicans had already begun to raise the level of partisanship regarding nominations
But The New Republic recognized what the GOP was doing. The magazine blasted the party and its tactics in a June 1997 editorial entitled "Obstruction of Justice":
The president's nominees are moderate and unobjectionable. The terms of debate on the courts have shifted, and the Republicans have won. And their only response to this historic victory has been to politicize the confirmation process beyond recognition. This is an ugly turn the Republicans have taken, and it will return to haunt them for years to come.
The magazine understood nine years ago that the Republicans were not just especially active on Clinton's nominees, but that the Republicans had politicized the issue by rejecting Clinton's nominees because of who nominated them. The GOP's blatantly partisan tactics demanded a new Democratic strategy. But The New Republic gave Democrats too much credit. Though the magazine's editors keenly understood that partisanship had been taken to a new level, Democrats did not.
From the time George W. Bush took office until very recently, it appeared that the Democrats had finally figured it out. If the Republicans acted in a way the Democrats believed was overtly partisan, then the minority had to do something to curb their power over nominations. Under the leadership of Senate Minority Leader Tom Daschle, Democrats began a routine of filibustering President Bush's court nominees. In the absence of a legislative majority the Democrats seemed to have finally outfoxed their Republican counterparts. Democrats used the tactic effectively in blocking a string of very conservative nominees like Miguel Estrada, William Pryor, Janice Rogers Brown, Priscilla Owen, and Charles Pickering. This infuriated their Republican colleagues of all people because the GOP had no easy way to circumvent the Democrats' obstruction. Senator Hatch called the Democrats' actions unconstitutional. After years of stymieing Clinton's right to appoint judges to federal appointments, Hatch lashed out against the filibuster technique. "If the Founding Fathers wanted to allow or require supermajority votes with regard to the advise and consent clause, they would have said so. They did not." Despite having locked up hundreds of nominees in committee as chairman of the Judiciary Committee, Hatch had the audacity to criticize Democrats' obstructionism. Hatch would not explain how not holding hearings on nominees constituted "advise and consent" but filibustering a nominee that has been given a hearing did not. Instead Hatch again showed his die-hard partisanship and berated the Democrats' efforts to block nominees they believed were too ideologically conservative. But the Democrats still used the filibuster relatively sparingly.
Republicans, almost out of options, took to the floor of the Senate and used identity politics to force the Democrats to relent. The Republicans were not only skilled at procedural partisanship; they were masters of mudslinging politics as well. Peter Beinart called the GOP and exposed this scheme for what it was in his August 2003 "TRB" column in The New Republic:
For more than a year now, Estrada's supporters have tried to focus his confirmation battle on ethnicity. Pennsylvania's Rick Santorum has called Democratic opposition "complete discrimination." Trent Lott has said, "They [Democrats] don't want Miguel Estrada because he's Hispanic," before exclaiming, "Viva Estrada!"
Beinart saw through the GOP's tactics. Instead of debating the judicial philosophy of the very conservative Estrada, the nominee's supporters scandalously charged that Democrats' opposition was motivated by racism. Beinart went on to defend the Democrats:
Democrats aren't upset that Bush is trying to make the federal bench more Hispanic; they're upset that he's trying to make it more conservative. In fact, for years they've opposed hard-core conservatives of all genders and ethnicities…Whatever you think about Democratic objections to Republican judicial nominees, they're based on ideology.
In case it had not previously been clear to Senate Democrats that Republicans would stop at nothing to confirm their radical right-wing nominees, Beinart summed up exactly the amazement that each member of the minority should have felt. The Democrats were still figuring out the Republicans' game while they were watching the GOP stoop to new lows of partisanship.
However, for all the rabid partisanship that had developed over Federal appellate and district nominees, Supreme Court nominees had always been treated much more deferentially. The Republicans had not obstructed Clinton's Supreme Court appointees, Justices Ruth Bader Ginsberg and Stephen Breyer. Republicans were fond of reminding the Democrats of this fact. But these appointments came before the Republicans took partisanship to previously unimagined heights.
A combination of factors allowed the minority Democrats to contemplate extending their filibuster strategy to Supreme Court nominees as well. One factor was what clearly seemed to be an escalation in the contentious nature of Federal court nominees. In the midst of the Democrats' continued efforts to block Bush's lower court nominees, Senator Lott devised a plan to change Senate rules to eliminate the filibuster entirely—the so-called "nuclear option," though he never pushed the button.
Another factor was the overt partisanship of the Supreme Court in deciding whether to allow a recount of Presidential election ballots in Florida. The election was dragged out over claims of voting irregularities and miscounted ballots. The saga culminated was when the Supreme Court decided, by a vote of five to four, to disallow the further recounting of ballots. Especially surprising in this decision was that five moderate and conservative justices who historically defended states' rights fiercely opposed those rights when it came to Florida's recount. Democrats could not interpret this in any way other than naked partisanship. In the eyes of many Americans the Supreme Court had lost its mystique. It no longer was the last apolitical institution, but merely another enabler of one side's political aims at the expense of another. Democrats were far more skeptical of claims that Supreme Court nominees deserved deference after such a partisan vote.
Republicans have had no incentive to stop their tactics. Since Daschle lost his seat in 2004, the Democrats have been unable to mount serious opposition to the Republican majority. In mid-May 2005, the Senate flirted with "nuclear" again until seven moderates from each party agreed to oppose Senate Majority Leader Bill Frist's attempt to employ Senator Lott's "nuclear option" to end filibusters again. The "Gang of 14" was praised for putting aside partisanship and reaching an agreement to oppose any procedural ruling against the right to filibuster while also opposing any filibuster against judicial nominees except in "extreme circumstances."
But the seven Democrats in the Gang, by trying to bridge the rift between the parties, were actually just allowing Republicans to dictate the terms of debate over nominees. This was true simply because the Democrats implicitly had to abide by the seven Republican Gang members' definition of "extreme circumstances." While the public praised these fourteen Senators for their "bravery," the Democrats had astonishingly forfeited their ability to decide as a party to block a very conservative nominee. The Democrats still did not get it. They believed that compromise and bipartisanship were the most effective ways to deal with the majority. No one seemed to realize that once the seven Democrats joined the Gang, they had already lost the future Roberts and Alito nomination rumbles.
Democrats had legitimate concerns about Alito and his record. Alito was either evasive or disingenuous when he claimed not to recollect things he had written in the past and when he said he was unfamiliar with some of the radical views of former Justice Department official John Yoo. Moreover, his views on abortion rights (clearly defined when he worked in the Reagan administration) and his support for the arcane and absurdly expansive "unitary executive theory," which is so difficult to explain satisfactorily that even many Senators had a hard time grasping it, raised legitimate concerns over what kind of Justice Alito would be. But because of his refusal to answer questions that would have helped the Senators make that assessment, he was at best unknown and at worst a potentially radical conservative in the mold of Justices Antonin Scalia and Clarence Thomas.
We now know how that story played out. The Senate Democrats buckled when the stakes were highest. They did not filibuster Alito because they could not prove on national TV that he was a far right-winger, even though everyone knew it. How could the Democrats forget that bipartisanship had been thrown out the window over a decade earlier? How did they overlook the evidence that even the highest court in the land is not above the crassest partisanship?
It seems the Democrats are back where they started: undone by Republican unity, unprepared for contentious battles over nominees, and unaware of the ramifications of being conciliatory. The Republicans will not remember the Democrats' honorable gesture of allowing Alito an up-or-down vote, and if they do, they certainly will not care. Whether the Democrats realize it or not, Congressional Republicans have been waging a war to reshape the social and political fabric of American society. By winning elections and packing courts, the GOP can slowly reshape America in the image it sees fit. And as long as Democrats desperately try to hold on to the bipartisan fantasy, the Republicans will continue to capitalize on Democratic weakness, infighting, and disunity.
The reason the GOP has been so successful in blocking Democratic nominees and confirming their own is that they have taken partisanship to new heights. Worse, Democrats have failed to realize that in the last twelve years, the Republicans have drastically altered the standard of permissible and reasonable obstructionism of these nominees. The Republicans gleefully watched as Democrats limited their own obstruction of both the Roberts and Alito nominations. In retrospect, the Democrats failed to adequately oppose President Bush's judges because they did not learn from the events of the 1990's and the Republicans' partisan tactics. The Democrats can claim the moral high ground for not blocking President Bush's nominees, but unfortunately it may require Republican obstruction of the next Democratic president's Supreme Court nominee for the Senate Democrats to realize the fundamental change that has taken place.
After the Democrats lost control of Congress in 1994, the Republicans conceived and executed a plan to block Clinton's court nominees. Under the leadership of the Judiciary Committee chairman at the time, Orrin Hatch, the Republicans simply refused to hold hearings for hundreds of Clinton's court nominees at both the Federal appellate level and the district level. At the time, this surprising development did not go unnoticed. Ted Gest and Lewis Lord of The U.S. News and World Report discussed this new strategy in their June 1997 article "The GOP's Judicial Freeze." They noted that whereas Congress had traditionally saved their influence and objections for a president's Supreme Court nomination, the Republicans were now seeking, and getting, a say in Clinton's lower court nominees. They cited University of Chicago law professor Geoffrey Stone as saying "it's a scandalous and stunningly irresponsible misuse of the Senate's authority." Although the strategy was criticized when it was first introduced, the Republican Congress staunchly claimed a right to block Clinton's nominees on the grounds that this was simply another way of carrying out their Constitutional duties under the "advise and consent" clause, which gives the Senate authority to confirm or reject the President's appointments.
Hatch's campaign was especially seen as a slap in the face because Clinton's nominees were generally considered quite moderate. However, these nominees were perhaps a little too moderate for some Democrats and liberal interest groups, who lamented the fact that Clinton rejected the idea of refashioning the courts to his (and their) political taste. At the time, Abner Mikva, then White House Counsel to President Clinton, affirmed the President's lack of desire for an ideological reshaping of the courts. "He doesn't want to make a federal bench in his image. What he really wants is a high-quality bench that will do the right thing regardless of ideology." The fact that Mikva made such a statement shows that his party was still trying to win over Republicans on philosophical, not political grounds. Democrats, from President Clinton on down, had not realized that the Republicans had already begun to raise the level of partisanship regarding nominations
But The New Republic recognized what the GOP was doing. The magazine blasted the party and its tactics in a June 1997 editorial entitled "Obstruction of Justice":
The president's nominees are moderate and unobjectionable. The terms of debate on the courts have shifted, and the Republicans have won. And their only response to this historic victory has been to politicize the confirmation process beyond recognition. This is an ugly turn the Republicans have taken, and it will return to haunt them for years to come.
The magazine understood nine years ago that the Republicans were not just especially active on Clinton's nominees, but that the Republicans had politicized the issue by rejecting Clinton's nominees because of who nominated them. The GOP's blatantly partisan tactics demanded a new Democratic strategy. But The New Republic gave Democrats too much credit. Though the magazine's editors keenly understood that partisanship had been taken to a new level, Democrats did not.
From the time George W. Bush took office until very recently, it appeared that the Democrats had finally figured it out. If the Republicans acted in a way the Democrats believed was overtly partisan, then the minority had to do something to curb their power over nominations. Under the leadership of Senate Minority Leader Tom Daschle, Democrats began a routine of filibustering President Bush's court nominees. In the absence of a legislative majority the Democrats seemed to have finally outfoxed their Republican counterparts. Democrats used the tactic effectively in blocking a string of very conservative nominees like Miguel Estrada, William Pryor, Janice Rogers Brown, Priscilla Owen, and Charles Pickering. This infuriated their Republican colleagues of all people because the GOP had no easy way to circumvent the Democrats' obstruction. Senator Hatch called the Democrats' actions unconstitutional. After years of stymieing Clinton's right to appoint judges to federal appointments, Hatch lashed out against the filibuster technique. "If the Founding Fathers wanted to allow or require supermajority votes with regard to the advise and consent clause, they would have said so. They did not." Despite having locked up hundreds of nominees in committee as chairman of the Judiciary Committee, Hatch had the audacity to criticize Democrats' obstructionism. Hatch would not explain how not holding hearings on nominees constituted "advise and consent" but filibustering a nominee that has been given a hearing did not. Instead Hatch again showed his die-hard partisanship and berated the Democrats' efforts to block nominees they believed were too ideologically conservative. But the Democrats still used the filibuster relatively sparingly.
Republicans, almost out of options, took to the floor of the Senate and used identity politics to force the Democrats to relent. The Republicans were not only skilled at procedural partisanship; they were masters of mudslinging politics as well. Peter Beinart called the GOP and exposed this scheme for what it was in his August 2003 "TRB" column in The New Republic:
For more than a year now, Estrada's supporters have tried to focus his confirmation battle on ethnicity. Pennsylvania's Rick Santorum has called Democratic opposition "complete discrimination." Trent Lott has said, "They [Democrats] don't want Miguel Estrada because he's Hispanic," before exclaiming, "Viva Estrada!"
Beinart saw through the GOP's tactics. Instead of debating the judicial philosophy of the very conservative Estrada, the nominee's supporters scandalously charged that Democrats' opposition was motivated by racism. Beinart went on to defend the Democrats:
Democrats aren't upset that Bush is trying to make the federal bench more Hispanic; they're upset that he's trying to make it more conservative. In fact, for years they've opposed hard-core conservatives of all genders and ethnicities…Whatever you think about Democratic objections to Republican judicial nominees, they're based on ideology.
In case it had not previously been clear to Senate Democrats that Republicans would stop at nothing to confirm their radical right-wing nominees, Beinart summed up exactly the amazement that each member of the minority should have felt. The Democrats were still figuring out the Republicans' game while they were watching the GOP stoop to new lows of partisanship.
However, for all the rabid partisanship that had developed over Federal appellate and district nominees, Supreme Court nominees had always been treated much more deferentially. The Republicans had not obstructed Clinton's Supreme Court appointees, Justices Ruth Bader Ginsberg and Stephen Breyer. Republicans were fond of reminding the Democrats of this fact. But these appointments came before the Republicans took partisanship to previously unimagined heights.
A combination of factors allowed the minority Democrats to contemplate extending their filibuster strategy to Supreme Court nominees as well. One factor was what clearly seemed to be an escalation in the contentious nature of Federal court nominees. In the midst of the Democrats' continued efforts to block Bush's lower court nominees, Senator Lott devised a plan to change Senate rules to eliminate the filibuster entirely—the so-called "nuclear option," though he never pushed the button.
Another factor was the overt partisanship of the Supreme Court in deciding whether to allow a recount of Presidential election ballots in Florida. The election was dragged out over claims of voting irregularities and miscounted ballots. The saga culminated was when the Supreme Court decided, by a vote of five to four, to disallow the further recounting of ballots. Especially surprising in this decision was that five moderate and conservative justices who historically defended states' rights fiercely opposed those rights when it came to Florida's recount. Democrats could not interpret this in any way other than naked partisanship. In the eyes of many Americans the Supreme Court had lost its mystique. It no longer was the last apolitical institution, but merely another enabler of one side's political aims at the expense of another. Democrats were far more skeptical of claims that Supreme Court nominees deserved deference after such a partisan vote.
Republicans have had no incentive to stop their tactics. Since Daschle lost his seat in 2004, the Democrats have been unable to mount serious opposition to the Republican majority. In mid-May 2005, the Senate flirted with "nuclear" again until seven moderates from each party agreed to oppose Senate Majority Leader Bill Frist's attempt to employ Senator Lott's "nuclear option" to end filibusters again. The "Gang of 14" was praised for putting aside partisanship and reaching an agreement to oppose any procedural ruling against the right to filibuster while also opposing any filibuster against judicial nominees except in "extreme circumstances."
But the seven Democrats in the Gang, by trying to bridge the rift between the parties, were actually just allowing Republicans to dictate the terms of debate over nominees. This was true simply because the Democrats implicitly had to abide by the seven Republican Gang members' definition of "extreme circumstances." While the public praised these fourteen Senators for their "bravery," the Democrats had astonishingly forfeited their ability to decide as a party to block a very conservative nominee. The Democrats still did not get it. They believed that compromise and bipartisanship were the most effective ways to deal with the majority. No one seemed to realize that once the seven Democrats joined the Gang, they had already lost the future Roberts and Alito nomination rumbles.
Democrats had legitimate concerns about Alito and his record. Alito was either evasive or disingenuous when he claimed not to recollect things he had written in the past and when he said he was unfamiliar with some of the radical views of former Justice Department official John Yoo. Moreover, his views on abortion rights (clearly defined when he worked in the Reagan administration) and his support for the arcane and absurdly expansive "unitary executive theory," which is so difficult to explain satisfactorily that even many Senators had a hard time grasping it, raised legitimate concerns over what kind of Justice Alito would be. But because of his refusal to answer questions that would have helped the Senators make that assessment, he was at best unknown and at worst a potentially radical conservative in the mold of Justices Antonin Scalia and Clarence Thomas.
We now know how that story played out. The Senate Democrats buckled when the stakes were highest. They did not filibuster Alito because they could not prove on national TV that he was a far right-winger, even though everyone knew it. How could the Democrats forget that bipartisanship had been thrown out the window over a decade earlier? How did they overlook the evidence that even the highest court in the land is not above the crassest partisanship?
It seems the Democrats are back where they started: undone by Republican unity, unprepared for contentious battles over nominees, and unaware of the ramifications of being conciliatory. The Republicans will not remember the Democrats' honorable gesture of allowing Alito an up-or-down vote, and if they do, they certainly will not care. Whether the Democrats realize it or not, Congressional Republicans have been waging a war to reshape the social and political fabric of American society. By winning elections and packing courts, the GOP can slowly reshape America in the image it sees fit. And as long as Democrats desperately try to hold on to the bipartisan fantasy, the Republicans will continue to capitalize on Democratic weakness, infighting, and disunity.
// DOV FRIEDMAN, CC '09, is interested in majoring in History and EALAC.