The Audacity of Hope

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.