When do you know there is no turning back? In political and intellectual circles it comes when long time adherents to a particular point of view embrace the exact opposite position without even noticing themselves doing it.
A perfect example of this process can be seen in this Gene Healy piece in Reason. He entitled it "Nuclear Brinksmanship." It could have been more accurately called "The Death of a Libertarian."
The fight over judicial nominations is moving past the posturing stage. On Friday, Vice President Dick Cheney removed any remaining doubt about whether he'd help G.O.P. senators use the so-called nuclear option in their quest to end judicial filibusters. With the nominations of Janice Rogers Brown and Priscilla Owen ready to come to the floor of the Senate, and Democrats determined to block them yet again, the Senate Republicans, with Cheney's help, have threatened to end judicial filibusters by a mere 51 votes, instead of 60 votes.
There are two possible outcomes to this game of nuclear brinksmanship. One sounds like fun. The other should give limited government advocates pause. The first outcome has Democrats retaliating by refusing cooperation on most of the ordinary business of the Senate. As former Democratic leader Tom Daschle explained to The New Yorker's Jeffrey Toobin recently, "The Senate runs on 'unanimous consent'...It takes unanimous consent to stop the reading of bills, the reading of every amendment. On any given day, there are fifteen or twenty nominations and a half-dozen bills that have been signed off for unanimous consent. The vast work of the Senate is done that way. But any individual senator can insist that every bill be read, every vote be taken, and bring the whole place to a stop."
Bringing the Senate to a crashing halt will hardly scare those of us who believe that no man's property is safe while Congress is in session. In fact, there would be something perversely entertaining about C-SPAN programming dominated by the monotonous recitation of 700-page agriculture bills. If only the senators could be forced to sit and listen. The Intelligence Reform Bill of 2004 is 236 pages long, and it's a safe bet few senators read it in its entirety. McCain-Feingold clocked in at a mere 36 pages, yet in February 2003 The New York Times reported that the Democratic and Republican party organizations had to hire high-priced lawyers and consultants to run seminars teaching senators and congressmen about the requirements of the law they had just passed. "I didn't realize what all was in it," Rep. Robert Matsui (D-Calif.) said. A breakdown in Senate cooperation would lead to a period of blissful inactivity, and could help educate the public about the increasingly incomprehensible statutes Congress calls "laws."
But the second possible endgame to the filibuster battle should worry you, unless you think too little legislation is a major problem in American life. There's a chance that the G.O.P.'s nuclear gambit could eventually lead to the death of the filibuster as a whole.
All straightforward enough. It's the next paragraph that is a doozy.
That would be disastrous. The theory underlying the Constitution is that, in political life as opposed to economic, transaction costs are good. As James Madison explained in Federalist 62, the Senate itself was designed in part to curb "the facility and excess of lawmaking." The filibuster isn't part of the Constitution, but it helps augment some of the Constitution's checks on promiscuous legislating. Since many of the constitutional checks on legislative overreach have eroded over the years, the filibuster is even more important today. [Emphasis added]
There is a technical name for what Healy is advocating here. In Supreme Court-ese its called a penumbra. Now it is one thing to make a practical argument wanting to keep the filibuster as is (as most of Healy's piece in fact attempts.) It is another thing altogether to dress it up as something inherent, in the Constitution. That is exactly the sort of muddled thinking that libertarians have been against from day one, or so I thought. Seeing it pop up, however briefly, in a libertarian publication without so much as the batting of an eye indicates that even the libertarians have fallen off of the map when it comes to interpreting the Constitution. It is hard to make this kind of argument and sound sincere when you attempt to argue against the idea of a "living Constitution." For all of their flaws, at least the Libertarians were always sincere before.
That is not to say that there are not things to like in Healy's article. I certainly approve of the following:
What ought to happen instead is a return to real filibusters. The Jimmy Stewart-style filibuster became a rarity in the 1970s when then-majority leader Mike Mansfield ushered in a two-track system whereby the Senate could move on to other business when a credible threat to filibuster was presented. In the modern era, real filibusters only occur when the majority sees political advantage in the spectacle. In 1988, for example, in the midst of a filibuster fight over campaign-finance legislation, then-majority leader Robert Byrd ordered the arrest of Republican senators boycotting a quorum vote. Three Capitol policemen forced their way into Sen. Bob Packwood's office, grabbed Packwood by his ankles and both arms, and carried him feet first onto the Senate floor. "The knock on the door and the forced entry smack of Nazi Germany, smack of communist Russia," wailed Senator Arlen Specter. "I rather enjoyed it," said Packwood.
Washington needs more of this sort of thing. If the Democrats really think Janice Rogers Brown is a threat to the Republic, they ought to be willing to get hoarse-voiced and incoherent keeping her off the D.C. Circuit. And if Republicans are committed to these judges, they ought to be willing to sleep on cots in cloakrooms. For their salaries, perks, and power, the least they can do is give us a show.
Amen to that.
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