So the outrageous behavior of the Democratic left in the Senate - and in Washington more broadly - has brought the Republicans to the brink of employing the nuclear option (more dispassionately: the fairness option) for nominees to the federal courts.
Rarely in the post-World War II era has D.C.'s partisan atmosphere turned so vicious, so acrimonious, so poisonous. Still, inconsistency on the filibuster is not the proprietary terrain of a single party. Segregationists, mostly Democrats, filibustered repeatedly on civil-rights legislation. Democrats did it again on such seemingly simple issues as deregulation of natural gas. Now they are effectively filibustering a cohort of administration nominees to the appellate courts, in a warm-up for coming confrontations over nominations to fill vacancies on the Supreme Court.
For their part, the Republicans are impure on filibustering judicial nominees. Lyndon Johnson's 1968 nomination of Justice Abe Fortas to become Chief Justice was stopped by a filibuster. And Republican senators became proficient at sitting on Clinton nominees they didn't like the way chickens will sit on eggs that never hatch.
Yet the Fortas filibuster, such as it was, stands as a rare example of an ideologically driven filibuster of a judicial nomination in which the Republicans participated; they joined with Southern Democrats from fear of Fortas' thoroughgoing liberalism. Today's brazen Democratic behavior defies historical comparison.
The D.C. face-off is all about power and ideology. We are in a conservative Republican hour. The Republicans hold the presidency and both congressional houses - by increasing numbers everywhere. Yet the Democrats act as though they do not read the election returns - or perhaps they read them too well. The federal judiciary is liberalism's last governmental redoubt. With the Supreme Court closely divided but with no vacancy there during Bush II's first term, the Democratic left has stymied key appellate nominees for four years.
They have built a separate industry that vacuums every nominee's opinions, statements and personal history in search of the merest nit, and out of such nits manufactures complicated constructs against the nominee's suitability for the bench - constructs that seem oh-so-sensible but are grounded in leftist intolerance of conservative belief.
Ross Mackenzie lives with his wife and Labrador retriever in the woods west of Richmond, Virginia. They have two grown sons, both Naval officers.
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