All the gauzy talk of judicial filibusters, "nuclear options," and the like is about to take on flesh and dwell among us. This is due to the U.S. Supreme Court's reminder last week of how deeply it matters who sits on the federal bench, interpreting our laws.
When five unelected justices, citing sociology and international opinion, overturn (Roper v. Simmons) the laws of 20 states regarding capital punishment for juveniles, well, my friends, that's nuclear. The faster we scurry from our bomb shelters and launch a second strike, the brighter prospects for sanity grow.
A little lubricant here, for rusted memories.
The "nuclear option" is political shorthand for a parliamentary maneuver meant to prevent Democrats from continuing to filibuster the Bush administration's judicial choices. The politicians call it nuclear because once it's put in play, Capitol Hill warfare will escalate fiercely. But war is going on right now. Surely we see that?
Among the blue-state intelligentsia last week there was high-fiving over the court's narrow vote to disallow the execution of a fine upstanding Missouri youth who, at 17, had -- maybe just a tad impetuously -- broken into a woman's house, kidnapped her, then thrown her off a bridge, expecting her to drown. She failed to disappoint him.
The five justices who voted to prolong this worthy youth's existence -- Anthony Kennedy, David Souter, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsberg -- cited not just "evolving standards of decency," as interpreted by the five themselves, but also the United States' seeming moral isolation in the world on account of letting states execute 17-year-old offenders.
Now, if the question of a higher age floor -- 18 years, say -- for capital punishment prospects were to be argued in any ordinary forum, we could expect to hear respectable arguments on both sides. A slim majority of the Supreme Court, as increasingly is the case (see the 2003 decision eradicating Texas' sodomy law), saw no reason the nation should debate what was clear in the justices' own minds, namely, the need for a major social change -- one the outside world could applaud.
Here is where we circle back to the matter of coming Senate battles over confirming jurists the Bush White House believes less inclined to dictatorship than, say, the five members of the Roper v. Simmons majority.