In the next 48 hours or so, we will find out whether an independent judiciary has any future in the United States. The Democrats have used the long-standing right of the minority in the U.S. Senate to filibuster legislation or nominees, to prevent them from getting approved by the majority party. The Republicans now want to remove the right to filibuster judicial nominees, to insure that they can continue to stack the federal courts with partisans, and, more importantly, to guarantee that they will not run into trouble when vacancies on the U.S. Supreme Court emerge, which they are almost certain to do, in the next couple of years (and perhaps as soon as this summer).
You must understand, of course, that the Democratic Party in the United States today is to the far right of the Labor Party in Britain and the Liberal Party in Canada; it is, in most respects, to the right of the Conservative Party in Canada. Its social and domestic policies are roughly in line with those of the Nixon Administration, perhaps a tad to the right. It is this party that is currently trying to preserve its right to block what this essentially conservative party views as "extreme" judicial nominees. Just to be clear, we are talking about judges who would be unappointable in any other Western demoracy, because of their ideological and religious zealotry or, in some cases, their plain mediocrity.
(A useful portrait of some of the judges whose nomination is at issue is here.)
Unsurprisingly, the main focus is on the procedural issues, and the propriety of changing long-standing Senate rules. But we should not forget the real issue, which is that the Republican Party of Bush, DeLay, Frist & co. is as close to unadulterated evil as anyone in the United States has seen in my lifetime: it is the party of theocracy (as a Republican Congressman put it), the party that revived the Nazi doctrine of “preventive” war, the party that supports torture, the party that undermines science, the party of radical regressive taxation, the party of naked and unapologetic bigotry against gays, the party that aims to destroy the main state protections (paltry as they are in America) for the indigent, the bankrupt, the ill, the elderly. It is the party of unbridled greed and (largely) unbridled cruelty. It is also, of course, the party of fiscal irresponsibility on a scale that would have made Rockefeller Republicans faint--though if that were all that could be said, it would merely be the party of foolishness.
This isn’t to say that all elected Republican officials are evil, and certainly not that all registered Republicans are—many of the latter are simply ignorant, while others are hoping that their party might still find its bearings. But the Republican Party that is setting the agenda and making policy in Washington, D.C. is the most evil U.S. Administration in living memory, and any discussion of the filibuster ought to keep that fact squarely in focus.
For the strongest moral case for retaining the filibuster isn’t, in my view, the process-based arguments that dominate the headlines (though they have some merit); it is the substantive argument, namely, that the party in power in Washington, D.C. is a danger to humanity, at home and abroad, and everything must be done to stop it from making lifetime appointments of religious zealots and bigots like William Pryor, or clinical cases like Janice Brown, or conservative mediocrities like Priscella Owen (and see also here). (You can talk, as I have, to any sophisticated Republican appellate attorney in Texas to find out that Justice Owen is viewed as a mediocre judge and a knee-jerk ideologue on a range of issues. The giveaway, of course, is that the Bush people could have nominated a variety of well-regarded Republican jurists from the same Texas court--former Chief Justice Tom Phillips, for example, or current Chief Justice Wallace Jefferson--but they chose the ideologically committed lightweight. When Senator Hutchison from Texas said the other day that Justice Owen was one of the most distinguished judges in the history of the Texas Supreme Court she not only insulted every sitting justice, but many of those who historically sat on the state's highest court.)
This is not the only time in American history that the independence of the judiciary has been under attack. Roosevelt, too, wanted to pack the Supreme Court with ideological compatriots, but his plan failed. But we also shouldn't lose sight of the fact that Roosevelt's "ideological compatriots" were on the side of justice, not evil. While the independence of the judiciary is a good in its own right, it is an especially important good when its independence is to be sacrificed to the forces of evil. And that is what is to be decided in Washington, D.C. in the next 48 hours.
Perhaps one of the small number of genuine social democrats and progressives in the Democratic Party will have the courage to say the word "evil" out loud, to point out that if the filibuster falls, we are consigning our judiciary to the likes of moral monsters like Karl Rove, Tom DeLay, and Dick Cheney. "God help us," as they say, if that comes to pass.
UPDATE: For the record, I should like to say that my esteemed former colleague Professor Rappaport is not evil, simply ignorant on certain subjects. As a great poet once said, "The road to hell is paved with good intentions."
ANOTHER UPDATE (9 pm Washington, DC time): A "deal" of sorts has been struck in which the filibuster option remains alive (for Supreme Court nominees one suspects), but in which the eminently unqualified and undeserving Janice Brown, Priscilla Owen, and William Pryor--noted above--will get votes in the full Senate. One interesting question is whether some of the Republicans will break ranks in the final vote on these three cases (one hopes that, at least, on Brown and Pryor some Republican Senators will have the courage to vote no). Now we'll see whether Frist & co. can honor this deal when push comes to shove. One possibility here is that even the Republicans in the Senate realized that killing the filibuster would effectively assign more power to the White House than even some Republican Senators care to do.