The Senate’s filibuster deal: only a truce in the culture wars

At first sight, the compromise stitched together in best smoke-filled-room style in Senator John McCain’s office late on Monday night, 23 May, looks like a ray of hope breaking through the lowering clouds of ideological polarisation and partisan bitterness that have hung over the Congress these many months. A closer inspection, however, reveals that American democracy is still some way off the sunlit uplands.

What is a “filibuster”?

A filibuster is a procedural device used in parliamentary debate. It describes the act of making speeches so endlessly long that they “talk out” the time granted for legislative measures to pass. In the 19th-century United States, beleaguered southern reactionaries cherished the filibuster as a way of defending the south’s “peculiar institution” of slavery and, after salvery’s abolition, its segregationist “way of life”. The word comes from a Spanish word for pirate, filibustero, itself a corruption of the Dutch vrijbooter, or “privateer”.

The immediate showdown over the confirmation of Texas state judge Priscilla Owen to a federal appeals court seat has been resolved, and the wider question of whether the Democrats can “filibuster” President Bush’s appointments to the federal judiciary has been avoided – for the time being. But even if the deal holds, the issue will remain painful. For many in both parties, judicial appointments matter precisely because the president wants judges on the federal bench who are committed to his Republican party’s currently uncompromising ideological agenda.

The conservatives want to reverse Roe v. Wade, the 1973 Supreme Court decision that made abortion legal in America. They mean to prohibit gay marriage and stem-cell research. They want to roll back “liberal” decisions on numerous racially-sensitive issues likely to come before the courts in the wake of the Supreme Court’s decisions in the two University of Michigan affirmative action cases. (The court approved an affirmative action programme for the Michigan law school because it made race only one relevant factor in admissions, but overruled the undergraduate admissions process because it gave too much weight to race.)

The background is a bitter tit-for-tat game both Democrats and Republicans have been playing over judicial appointments since Senator Edward Kennedy and the liberals rejected the distinguished but very right-wing Robert Bork in 1987. Republicans refused to confirm President Clinton’s nominees after his election in 1992, and Democrats retaliated by blocking President Bush’s first-term appointees, to the point that a long queue of judges were waiting for so much as a committee hearing.

Who’s next in the Supreme Court?

Since the November 2004 election, the Republicans have 55 votes in the senate, to the Democrats’ 44 (plus one independent). But by convention it takes not a simple majority of 51, but 60 votes to break a filibuster, so the Democrats could not be budged. Republican senators demanded a change in the rule. Their leader, Bill Frist, threatened what was called the “nuclear option”. They would get the vice-president, Dick Cheney, the presiding officer in the Senate, to give a ruling that it would take only a bare majority to end a filibuster. The Democratic leader Harry Reid responded by saying he would “screw things up”.

Monday night’s solution, or perhaps temporary “fix”, took the form of seven Republicans and seven Democrats agreeing to a compromise. The Republicans got assurances that the Democrats would not routinely filibuster judicial nominations. The Democrats wanted the Republicans to give up the nuclear option.

For the president, it is a mixed blessing. If the deal holds, he will get at least two more ideologically conservative judges now stuck in the pipeline, in addition to Priscilla Owen (whose nomination had been delayed for four years). But he will not have the freedom the nuclear option would have given him to pack the federal bench with reliable conservatives and so build some of his philosophy into the judiciary for a generation or so to come.

Most to the point, he cannot be sure that the Democrats will allow him to appoint committed conservatives to the Supreme Court, and in particular to the chief justiceship, which Chief Justice William Rehnquist is expected to vacate in a matter of months because of ill-health.

The front runner for Rehnquist’s job is probably Justice Antonin Scalia, a self-styled “originalist”, who hides neither his very conservative philosophy nor the glee with which he teases those less conservative than he is. If the president does nominate Scalia, or some equally unequivocal conservative, it is by no means certain that Monday night’s deal will hold. Already some commentators are saying that all the moderates on both sides of the aisle have succeeded in doing is postponing a showdown that will be even more bitter when it comes on the issue of who will preside over the highest court.

The choice of Rehnquist’s successor will be a test of President Bush’s political skill, which is often underestimated. Some conservatives think he will chose the very conservative Justice Clarence Thomas, on the somewhat cynical grounds that Democrats would find it hard to oppose an African-American, even one with such Right-wing views as Justice Thomas.

Others have sung the praises of Judge James Harvie Wilkinson III of the Fourth Circuit in Richmond, a patrician from the “country club” wing of the Republican party, but a subtle and thoughtful jurist. Some think he might nominate Sandra Day O’Connor, who has emerged as the swing member of the court, often delivering a five-to-four majority for moderate positions. Others think Bush will damn their “yes” and go for a red-blooded conservative from outside the court.

An end to polarisation?

Whichever way Bush goes, Monday’s agreement by no means guarantees an easy passage for the president’s nominee. But the fact that the deal was brokered by John McCain – Bush’s strongest competitor for the 2000 Republican nomination, a loyal Republican but no great admirer of the president – raises an interesting general question: are we seeing the first signs of an end to the bitter ideological polarisation that has been the most striking characteristic of American politics since the Reagan revolution was put on hold by the election of Bill Clinton in 1992?

There are certainly many, many Americans, in politics and outside, who hunger and thirst, as the Senate’s “gang of fourteen” did, after a more civil tone in politics and a stronger sense of the national as opposed to the partisan interest. But the difficulty is that “liberal judges” have taken their place in the conservative demonology alongside the “mainstream media” as one of the two great forces of elitist liberalism that are frustrating the ultimate conservative ascendancy.

As long as the conservative blogs throb with contempt for judges who do not join the crusade of God’s people, any Republican president would need to get conservative judges on to the bench. As long as the Bush administration persists in acting at home and abroad as though November’s election was a mandate for going all out for unconditional surrender in the culture wars, truces like Monday night’s are likely to be strictly temporary.