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(DV) Street: The "Nuclear Option" and the One Party State







The Nuclear Option” and the One Party State
by Paul Street
April 26, 2005

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America’s wacky right wing party and political system doesn’t get much worse than this. On Sunday, the Republican United States Senate Majority Leader Bill Frist (R-Tennessee) appeared on a national evangelical Christian television show that depicted Democrats as being against religious believers. Frist’s remarks appeared as part of a “Justice Sunday” telecast titled “The Filibuster Against People of Faith.” “Justice Sunday” is set up by the Family Research Council, a Washington-D.C.-based right wing lobbying group that is helping lead a reactionary “Christian” campaign to impose right-wing political dominance over the federal judiciary. The Sunday broadcast denounced the Democrats for using the 200-year old Senate filibuster procedure to block the appointment to federal judicial positions of nominees who oppose abortion rights as a matter of moral and religious principle.

It’s a bit of an odd role for Frist, who has not been as strongly associated with the Christian rights as his more messianic fellow Republican leaders House Majority Whip Tom Delay (R-Texas) and President George W. Bush (R-Texas). “With his patrician bearing and background in the relatively liberal Presbyterian Church,” the New York Times noted last Friday, “Dr, Frist, a Harvard-trained transplant surgeon, does not fit in as naturally with Christian conservatives as President Bush.”

Under the filibuster, designed to protect the rights of minority parties in the Senate, it requires the vote of 60 of the nation’s Senators, not just a simple majority (51), to approve the appointment of a federal judge. The Republicans currently possess 55 Senate seats and thus lack the necessary votes to cut off a filibuster. Since the nation’s Christian Fundamentalist President seized power with Supreme Court assistance in January of 2000, he has made 215 judicial nominations, of which just 10 have failed to win confirmation because of Democratic filibusters.

In what they have termed “the nuclear option,” the Republicans are planning to make a historic change in the Senate’s rules by eliminating the filibuster for judicial appointments. The Republican Party, which used the filibuster to block Democratic appointments and legislation when it was the minority Senate party (preventing Lyndon Johnson's nomination of Abe Fortas for the Chief Justice seat at the Supreme Court in 1968, for example), now calls the longstanding parliamentary technique “unfair” and “discriminatory”.

According to a recent public opinion poll conducted for NBC News and the Wall Street Journal, 50 percent of the American populace thinks the Senate should keep the filibuster. Forty percent think the filibuster should be dropped and 10 percent are undecided.

A showdown is expected in the next few weeks over Bush’s re-nomination of the previously defeated federal appellate court candidates Priscilla Owen and Janice Rogers Brown. Owen is an extreme right member of the Republican-appointed Texas Supreme Court. When first put up by Bush in 2002, she was opposed by 19 Texas civil rights, labor, women’s rights, consumer and other organizations who noted that her rulings “favored the interests of corporate Texas or government at the expense of ordinary Texans.” Owen’s opinions reveal a hard right worldview that opposes government protection for all but possessors of propertied wealth and political power.

Brown is an activist, extreme right member of the California Supreme Court. According to a recent article in the New York Times Magazine by Jeffrey Rosen, a law professor at George Washington University, she is “known for her vigorous criticism of the post-New Deal regulatory state.” Brown once referred to “1937” as “the year the Supreme Court began to uphold the New Deal” and “the triumph of our socialist revolution.” Rosen noted that Brown “has praised the court’s invalidation of maximum-hour and minimum-wage laws in the Progressive era,” reflecting her extreme support for the protection of concentrated property rights at the expense of basic human rights.

Beneath their opposition to abortion rights and support for other key parts of the Christian right’s red meat “moral issues” agenda, Owen and Brown are champions of the anti-regulatory neoliberal political-economic agenda that most interests the Republican’s corporate-plutocratic funding base.

Last Thursday, The Republican-controlled Senate Judiciary Committee approved and sent Owen and Brown to the full Senate for the second time. The fight over their re-nominations, expected to occur sometime in the next few weeks, could trigger a critical confrontation, with the Republicans voting (by simple majority) to abolish the filibuster in judicial nomination. The Democrats, in turn, are threatening to slow the Senate “to a snail’s pace” by insisting that the body follow all of its formal procedures to the smallest letter.

What’s going on here? Frist’s television appearance clearly reflects his strong presidential ambitions and the related calculation that the Republican path to the White Houses goes through the religious right. According to the Times, Frist must “court the evangelical Protestant groups and other religious traditionalists that formed the bedrock of President Bush’s winning coalition” if he wants to follow Bush into the presidency. (NYT, April 22, 2005) And judicial appointments are a very big deal for the religious right, which includes a number of Congressmen (including some Senators) and perhaps the President himself. Much of fundamentalist America is convinced that “liberal” judicial “activists” in the state and federal courts are stealing their personal and property rights, threatening their “way of life,” and enforcing an elite, “un-American,” and immoral secular-humanist world view on virtuous God-fearing Christian majority.

The Republicans are clearly trying to prepare the way for the successful appointment of hard right justices to the Supreme Court, which has disappointed both the White House and the religious right with its failure to abolish affirmative action in higher education and its reluctance to decide in favor of the some of the federal government’s most draconian, anti-civil-libertarian post-9/11 “national security” actions. The high court has opposed some lovely little hard right initiatives like the attempt to legalize the execution of minors.

The impending likely “nuclear” crisis comes as Bush expects to appoint at least two Supreme Court justices, leaving a dark reactionary stain on the nation’s legal history for many years to come. It comes also at a time when Republicans have some reason to believe that they have attained single-party dominance in the Senate as well as across the rest of the Congress, the White House, and much of the federal judiciary for quite some time. Despite the existence of an American electorate that is as divided as ever in party identification and tends towards liberalism and even a measure of social democracy and anti-imperialism on many issues, a number of factors have come together to produce Republican hegemony across the three branches of the federal government. These factors include the right-leaning bias of the nation’s highly concentrated dominant (corporate) media (falsely termed “mainstream”), the “safe-seat” gerrymandering (redistricting) of the US House of Representatives (which makes a formerly small party gap of 25 seats practically insurmountable), the strong identification between national security and the Republican Executive Branch in the post-9/11 era, the strong political mobilization and organizational capacities of the Christian right, and presence of corporate political money to favor the more openly pro-business Republican Party in “America, the Best Democracy Money Can Buy,” where ruling judicial doctrine equates political cash with free speech.

Another factor that deserves mention, of course, is the deep complicity of the Democrats in the corporate and imperial takeover of American politics -- something that costs it the possibility of offering a relevant popular alternative to the in-power right. The increasingly token “opposition party’s” abject failure to fight the great interrelated struggles for social justice, civil rights and global peace is significantly self-imposed. It was glaringly evident in the tepid Kerry campaign, which embraced the unpopular US occupation of Iraq and refused to talk about rising American poverty and the related hyper-concentration of wealth and income in the US, the industrialized world’s most unequal and wealth-top-heavy nation by far. It is seen in many Democrats’ support for the recent regressive Republican bankruptcy bill (an assault on the nation’s millions of working poor) and their refusal to demand even basic conditions for approving the White House’s obscene allotment of $81 billion more to the illegal campaign in Iraq.

Given these and other factors that may be relegating the Democrats to permanently marginal status, many Republicans have a difficult time imagining themselves on the wrong end of the filibuster in the future. You don’t engage the “nuclear option” if you think that the enemy might launch atomic weaponry back at you. At present, however the Democrats’ deterrent capacity is at its lowest in memory and the more reactionary, religious, and militaristic of the two dominant business parties is salivating to move fully beyond containment and to engage full rollback of the other party by abolishing the filibuster (last bastion of Congressional minority opposition) and radically realigning the federal judiciary for decades.

The left should take a “no nukes” posture on this latest reactionary gambit, of course. The current Republican judicial appointments are terrible, far out of touch with actual “mainstream” opinion in the US. The Senate “minority” is closer to the actual American majority (thanks to the Constitution’s “two senators for every state, no matter how small” rule, the Senate Democratic “minority” actually represents a literal headcount majority as well as an opinion majority on judicial appointments), we can rightly observe. We should remind Republicans that they could in fact be a minority in the Senate again…someday.

We should continue to work for critical democratic transformation in the candidate selection and policy processes and the national communications regime. Such changes include public financing of campaigns, proportional representation, and Instant Runoff in presidential elections, and the break-up of the insidious corporate media monopoly. They would help bring America’s party and policy systems and the nation’s visible opinion and commentary into proper alignment with popular sentiment on vital matters of issues of domestic and global policy.

At the same time, remembering that it takes two parties to make the US into a one-party state, we must challenge the Democrats to either pull themselves out of their imperial corporatist lethargy or get out of the way to make room for others who will take up the peoples’ fight against the arrogant masters of the in-power right.

Paul Street is the author of Empire and Inequality: America and the World Since 9/11 (Boulder, CO: Paradigm Publishers, 2004) and Still Separate, Unequal: Race, Place, Policy, and the State of Black Chicago (Chicago, IL, April 2005). He can be reached at:

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