In our fury at Kittykiller Frist for planning to usurp what little power Democrats have left to stop the rightward lurch of the country, we have forgotten the most persuasive argument against the Nuclear Option. This is an argument that is not dependent on your politics. It is one that all of us, left, right, and center, can agree upon. And that is, simply, that extremist judges make extreme law. The Nuclear Option will result in extremists
of both parties predominating in our judiciary and will result in an outcome that I call, for lack of a better term, "legal schizophrenia."
Follow me for a few moments on a whirlwind tour of the institutional environment of American politics and law.
For better or for worse, the United States has a two-party system. Either the Democrats or the Republicans will be in the majority in the Senate, and either the Democrats or the Republicans will occupy the White House.
As all lawyers and many non-lawyers know, the United States is also a common law nation. That means that when judges make decisions, they not only decide the facts of a particular case, but they make law. Future judges are largely bound by the decisions of past judges through the principle of stare decisis. There are occasional reversals (i.e., from Plessy v. Ferguson to Brown v. Board of Education or from Bowers v. Hardwick to Lawrence v. Texas), but by and large, the decisions judges make have staying power.
If you accept that the United States still has free and fair elections (the only weak point in this entire argument), the Republicans will not be in the majority forever. Be it in 2006, 2008, 2010, 2012, 2016 or whenever, eventually, the pendulum will swing the other way, and the Democrats will hold the White House and the Senate.
What happens then? Well, of course, it's payback time. In response to the right-wing extremists that the Republicans will appoint to the courts over the next few years, and in the interests of ideological balance, the Democrats will appoint judges who are the polar opposites of Priscilla Owen and Janice Rogers Brown. Because of the lack of the filibuster, we will be able to ram these nominees through just the same way that the Republicans plan to ram through their extremists.
Judges serve for life. This means that the judges appointed by Dubya and rammed through the Senate without the power of the filibuster may be on the bench for 20, 30, 40 years (For instance, William O. Douglas holds the record for the longest service on the Supreme Court: 36 years!) These folks will be around for awhile, as will whatever judges the Democrats appoint when we have the White House and a bare majority in the Senate.
The result? "Legal schizophrenia." The bench will be occupied by both left-wing extremists and right-wing extremists. The outcome of your case will be determined largely by which judge you get. Three-judge appellate panels will make radically different decisions dependent on whether they have a predominance of left-wing extremist judges or right-wing extremist judges. En banc review will not solve the problem, because different circuits will have majorities of different extremists. The balance on the Supreme Court will likely shift from extreme left-wing to extreme right-wing depending on the appointment of one or two justices. The law will swing wildly from pole to pole and will represent different ideologies in different areas, depending which group of extremists happened to have a 5-4 majority on the Supreme Court at the time the seminal decision in a given area came down. Reversals will be frequent as the ideological balance shifts back and forth.
An ideologically polarized country with life tenure for judges, a two-party political system, and a common law legal system needs the filibuster on judicial appointments to ensure legal stability. It is only because we so seldom have a president of the same party as a filibuster-proof majority in the Senate that we have the legal stability that we currently enjoy. Presidents are forced to make appointments that will, if not attract a few minority party votes, at least not engender a filibuster.
If Americans of all political stripes understood that what is at stake here is the very rule of law that is the hallmark of our system, they would be paying much more attention to the situation currently playing itself out on the floor of the Senate. But it is indeed the rule of law that is at stake here. If the law swings wildly back from polar opposite to polar opposite, the people will lose respect for it and may, indeed, not even know what the law is in many areas important to them as it swings back and forth.
There's an economic argument here, too. Judge-made law is hugely important in the area of commerce. If our legal system is unpredictable, investments will not be secure. Foreigners will not want to put their money in the United States. As the commercial law swings back and forth, fortunes will be made and lost. The predictability of the commercial legal climate has a huge effect on whether people are willing to invest in an economy or whether they will stuff their money in mattresses.
As a moderating influence, the filibuster is an absolutely necessary check and balance to ensure not just that the values that we Kossacks hold dear are not eviscerated by a right-wing judiciary but that the country as a whole continues to enjoy legal stability.