Poisoning the Well

Jeff Alworth

The relationship between Oregon Senators Ron Wyden and Gordon Smith serves as a model for the kind of comity with which the nation's deliberative body has been marked.  It may soon demonstrate what we--as Oregonians, and as a nation--have lost if Bill Frist pushes forward with his plan to end the ability of minority Democrats to filibuster judicial nominees

Following the decades of collective power in the form of the Hatfield/Packwood tandem, the Smith/Wyden era didn't look particularly promising.  A socially conservative Mormon from the state's high desert and a true-blue Portland liberal seemed unlikely to find common ground.  And yet within less than a decade, the two have forged an unlikely bond, carving out bipartisan territory on a host of issues.  Their friendly, pro-Oregon relationship depends on the highly artificial structure of the Senate, which feeds on compromise, not brute force, as is the case in the House.  The relationship between Wyden and Smith will be fractured forever, as will the culture of the Senate, if it becomes a body of simple majority control.  Already the issue has divided Oregon's Senators: Wyden vigorously opposes Frist's plan, and today Gordon Smith said he'll support it.

The issue is being framed in the Senate as a battle over the Constitution, but both sides are well aware that it's actually an old school political scrum.  The GOP is clearly reaching for a level of power unprecedented in the Senate, though both parties feel equally aggrieved about how judicial nominations have been handled.  The consequences of the battle are relatively clear to both sides, and it's unthinkable that we could have come to this place--that is, on the verge of a potentially fatally gridlocked Senate.  Yet the progression was incremental, and we've gotten here only after fifty years of wrangling.  Neither party's hands are clean, and each step along the way looked like politics as usual. 

The Senate handled judicial nominations about the same way for the first 175 years.  Then, in 1954 came the landmark ruling in Brown v. the Board of Education, a unanimous decision that reversed the Supremes' ruling in Plessy v. Ferguson allowing "separate but equal" schools. (Coincidentally, this week marks the 51st anniversary of Brown.) This set into motion an enraged Southern Democratic Senate who decried "activist" judges. Prior to Brown, Senate questioning of Supreme Court nominees was rare (it had only happened four time previously). Following Brown, it became a regular practice.  For the first time, Senators actively tried to suss out a judge's politics before they approved him. 

Richard Nixon raised the ante in 1968 by introducing the "Southern Strategy," in which he pledged to only appoint "strict constructionists" who would observe "states rights" (coded language Southern whites understood to mean pro-segregation judges) to the Supreme Court.  But even more significantly, once he was elected, Nixon took the step of formally vetting judges for their ideological purity.  The "litmus test" was born. White House aid Tom Charles Huston wrote the famous memo outlining the theory of the litmus test; in it, he argued that if the president "establishes his criteria and establishes his machinery for insuring that the criteria are met, the appointments will be his."  (One of Nixon's first nominees--torpedoed by the Democratic Senate--was an avowed segregationist.)

It's hard to say what would have become of the litmus test if not for the 1973 decision in Roe v. Wade, which reignited furor against judicial activism. Roe was in a certain sense a godsend for the GOP, who could now divorce themselves from the Southern Strategy and play the abortion card in judicial disputes. It further allowed the GOP to expand the base who would oppose "judicial activism" and cleansed that position of its recent racist pandering.

The ratchet turned again in 1987, with the nomination of Robert Bork. Bork was well-qualified and went through a grueling nomination process in which he answered all the Senators' questions, carefully outlining his (far-right) views. A great deal was at stake for both sides. Following the resignation of Lewis Powell, the court was evenly divided on Roe. Democrats, who controlled the Senate, rejected Bork on purely ideological grounds, marking the first time senators transparently employed their own litmus test.  For conservatives, this was a watershed moment. Never mind that the reason judges like Bork got the nomination was because they had passed a presidential litmus test--Senators were not supposed to act in kind.

The ante just kept going up.  Following Bork and Clarence Thomas, the Senate became particularly recalcitrant in the GOP-controlled years of the Clinton presidency.  After Bush was elected, the GOP removed a key procedural practice whereby senators had the right to reject nominees to their home-state courts before they even came to committee.  Much of the rhetoric about "simple up or down votes" ignores how the process has been "streamlined."

So now we find ourselves at the brink of nuclear war.  If that war happens, no one is exactly sure what kind of fallout will result.  Some things are clear, though. The result will effect far more than just judicial nominees.  It will create a radioactive environment in the chamber (sorry, the metaphor is getting out of hand) where neither side will be able to compromise.  That means that Wyden and Smith will no longer be joined by a common interest in their home state--they'll be divided by a Berlin Wall of antipathy.  It means they won't  be able to sit together and craft Northwest-friendly laws, which further means citizens and activists won't have allies in lawmaking when they want to get things done.   

Each year, Wyden and Smith offer a bipartisan agenda about what they hope to accomplish.  In the spirit of bipartisanship, they agreed this year to make progress on health care, renewable energy, and a plan to make Oregon a leader in nanotechnology.  Wyden is also joining Smith on the Senate Finance Committee, the powerful committee that sets the agenda on issues from taxes to health care to trade policy.  For Oregonians, that could have been great news.  The two senators, working together in committee to generate bipartisan bills, might well have brought much benefit home to Oregon.  But if Frist exercises the nuclear option, what are the chances they'll be able to seize the opportunity?

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    There was no real place to include this quote in that post, but I'll do it here, as an addendum:

    "[A]s the President has a right to nominate [judges] without assigning reasons, so has the Senate a right to dissent without giving theirs." --George Washington, 1789
  • iggi (unverified)

    "That means that Wyden and Smith will no longer be joined by a common interest in their home state--they'll be divided by a Berlin Wall of antipathy."

    you should change that to:

    "That means that Wyden and Smith will no longer be joined by a common interest in their home state--they'll be frozen by a Nuclear Winter of antipathy."

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    It just amazes me. The war in Iraq, healthcare, etc. etc. You'd think the majority in the Senate would just go "Oh, perhaps we should just find some better judges to put forth", but no, instead they are pushing to have it their way, and their way only. Makes me sick.

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    This is a horrible turning point for the Senate, but one encouraging thing is the clear support among the American public for the Senate Democrats' position. It's not obvious that it would have turned out this way. The Democrats' argument is the better one historically and constitutionally, but it is also counterintuitive -- that a minority should have the ability to thwart the will of the majority. The use of the filibuster would also seem to run squarely into the public's dislike of whatever sounds like "obstructionism." Yet, the public seems to see the nuclear option for what it is. Maybe there is something to that "common sense of the American people" that we're always hearing about. Perhaps without understanding all the subtleties of the issue, they innately sense that the GOP is going too far.

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    Great piece Jeff. A (dare I say it?) fair and balanced analysis of one of the more important issues.


    I do like to ask my friends on the right how they'll feel about the lost filibuster in 2020 when Chelsea's president....

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    Pat... Not to worry, they're going to run George P. Bush against her.

  • Simp (unverified)

    Pat said: but it is also counterintuitive -- that a minority should have the ability to thwart the will of the majority.

    In the House, yes. However, the Senate is, by design, intended to be a deliberative body meant to operate by consensus. Even rule changes are supposed to be approved by 2/3 or the Senate.

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    Pat... Not to worry, they're going to run George P. Bush against her.

    Wait a minute, there's little George Bush that I don't know about?

  • David English (unverified)


    I agree with the others, that was a great piece and it was well balanced. It is interesting to go back and hear some of the history behind judical appointees and the use of the filibuster.

    As to the relationship between Wyden and Smith, I have to wonder what damage this will do. Maybe if the Senate never votes on whether to change the rule, things will settle down enough that they can get back to working together.

    Certainly, for the next three years, these are the two that can get things done in the Senate. I hope for Oregon's sake they can work together. I guess we will have to wait to see how this plays out.

  • Tenskwatawa (unverified)

    As I recall it, the "litmus test" phrase was introduced after Roe v. Wade and only to refer to it -- nominees required to be anti-abortion as the very first consideration, like the ante in a poker game, in order to proceed in other respects. After the first quote of "litmus test," then it obviously could get used in hindspeak to characterize pre-1973 judicial and other nominees' processing, but it had not been said in those earlier times. Civiletti or Sadler could maybe offer more.

    Bork's 'borking' was most pointedly directed at his refusal to speak, and lack of rulings indicating, his anti-abortion mindset. Which was indictment by 'absence of evidence' as thwarted rightwing stealthers put it, (although true -- he was/is anti-choice, truth was not their objective), but rejection was sustained in the normative and leftwing framing (in unvoiced 'intuition') of Bork's implausible pristineness as 'evidence by its absence.'

    I am splitting a hair, I realize, Jeff, (the unspecific syntax in your Huston citation about 1969 that was not written in 1969 using "litmus test"), for the tedium the rightwingers cause with their interpretations in concrete from inferences not precluded. This is the same daily tedious 'fuzz-tending' that David Brock's stickler-for-the-facts work has done on MediaMatters.org to make that site so estimable and powerful.

    This unceasing rightwing corruption of language, (they're the ones who first used the word 'spin' for their first practice of it; and the 'Adam' of spin, Edward Bernays, inventer of p.r. -- palaver rightist), and their rendition from bastardized language to bastardized thinking, is the central accusation I make against them. There is another example every time their lips move. And every time one of their pup 'trolls' goes posting in blogs their recited fallacies and twisted falsehoods. It is the poison of Rash Lamebrain, aurally using tone of voice to make words mean to listeners the exact opposite of what the words mean to readers, that has spread to the complete sickening of statecraft, policy debate, democracy, and Justice. (Exactly the charge George Galloway hoisted senator "idiot-boy" Coleman by, (Randi Rhodes' tag), yesterday, in denying Coleman could charge "many" meetings when Galloway in fact had two with Saddam ... 'exactly the same number as Rumsfeld.')

    And exactly the charge I hoist senator 'inarticulate' Smith by. He is not "moderate" in stark fact. Smith is a full-blooded rightwing radical anti-abortion extremist and has never denied it, but lets false inferences from his good hair and cherub complexion be drawn and promoted without him correcting them. That's the "stealth." That is the talk in "code words" to a "base" which takes the secret-handshake meaning, and leaves ordinarily literate folks assuming it means something else, such as: what the words are supposed to say.

    Smith & Wyden never were convincingly 'bipartisan.' That characterization was to Smith's advantage to soften his shards and stiff kneejerks of 'thought.' For Wyden the association was simple pragmatics, as I saw it -- it didn't hurt Wyden and he could take whatever incidental gains accrued here and there. And so, more hair-splits, Jeff, (not the same as 'scalping,' (-; actually I like your post and it reads well-written), where it says the dipsy duo has "separated," and sounds equanimical, I say Wyden stood pat and Smith flamed out at 'keeping up' appearances and has reverted to his native netherworld. Where the rightist devils' party has his soul and all he's got is a stupid stuffed shirt. And where I hope Smith ends to a mean.

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    Yes, Leslie, there is another George Bush out there - he's the son of Jeb. From the Guardian:

    The polished young man speaking on Univision, the biggest Spanish-language TV channel in the US, might have been a movie star. Or perhaps, with his fluent Spanish and handsome features, a sports star. Or he might be the next member of the Bush dynasty to take to the political stage and become possibly, just possibly, the first Hispanic president of the US. Meet George P Bush, 28, nephew to W, grandson of H, son of Jeb. "George P Bush is a tremendous asset to the family," said Dario Moreno, director of Florida International University's Metropolitan Centre. "He's obviously Hispanic, he's an attractive young man, he's articulate and he's a Bush. That's a powerful combination. It raises the dynastic possibility, and it could be a hoot if the first Hispanic president of the US is a Bush."

    One friend of mine refers to him as "Hottie P" Bush.

  • JB (unverified)

    I wonder what Elizabeth Furse thinks about this?

  • Tenskwatawa (unverified)

    [n.b. I omitted (above) a sentence after "...(people) could offer more." Add: I could be wrong.]

    Charlie Burr, I liked your letter to The O. today. The headlined premise -- 'Smith, innately honorable, falls down' -- were it reversed might read: 'Smith, long faking honor, no longer strong enough to hold up the mask.'

    Similar to reversing the (optical illusion) view of the filibuster as 'a weapon of the minority.' How about 'filibuster assures testing the strength of majority consensus.' Some matters, such as lifelong judiciary appointments, are important enough to require more than a fifty-fifty(plus 1) probablistic coin-flip determination, and better be an expression of a solid consensus of most (voters) where 'most' is defined as 60 out of 100, (for now, reserving the right to revise and extend it further).

    Filibuster: Not a 'minority weapon,' but the majority's most reliable wisdom.

    [Wisdom: Something today's fascists can not claim to have established. Which imitates the model in 1933 German elections, when nationalistic nazi party narrowly fell short of fifty percent convening in temporary legislature (since venerated Reichstag chamber burned by arson the week before), and new security stooges at the new site forcibly barred entry to a few duly elected non-nazis until that majority was reduced below fifty percent seated inside. 'Close' can count in horseshoes, but not in assured deliberation.]

  • Tom Civiletti (unverified)

    Leslie Carlson:

    "Wait a minute, there's little George Bush that I don't know about?"

    Ya, Condi's the mother.

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    Jeff A.,

    Nice piece. This has been building for a quarter century. I have a reading list of materials on American politics from a course called "The End of Liberalism?" here .

    Unfortunately, this is only the most recent expression of a deep partisan divide among our political elites. And I agree with you also: both parties share the blame.

    On a positive note, the Oregon House just passed a measure that would assign redistricting to a non-partisan commission. So perhaps there is a light at the end of the tunnel.

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    All--I've been following the discussion, and just wanted to thank those of you who complimented this post. I don't have anything particularly intelligent to say, so I'll just pipe down. But thanks--

  • Ed Bickford (unverified)

    Thanks Professor Gronke for the link to Ambassador McGovern's pre-Iraq II war essay "The Case for Liberalism: the Defense of the Future against the Past". Now there's a statesman we can be proud to have sent to the UN!

    In it he quotes Wm. F. Buckley's exposition of conservatism: “Conservatism is the tacit acknowledgment that all that is finally important in human experience is behind us...” This shows that their hidden agenda is to lock in place the power and wealth structure built around themselves, the prime motivator of the aristocratic class. They indulge their basest instincts for survival in an evolved society where it is virtually assured. It is the businessman's justification for the creed of monetary profit whatever the cost in human terms.

    It's human nature to desire wealth, but it is also human nature to aspire to much more than mere survival. We want to live in a society that values community, and seeks to lift up those who are not as fortunate. This is the prime motivator of democracy. It is the liberal's justification for the creed of human advancement whatever the cost in monetary terms.

    These are the poles of our political polemic, but the way of the world is to maintain equilibrium. It was the aim of the framers of the Constitution and the theme of our history. What I fear is the violent correction when such systems get far out of balance. Class warfare frightens GWB so much he can't bear to hear the term, but not enough to refrain. We have got to find a way to get through to the conservatives before it goes too far.

    What kills me about Senator Smith is that he is a principled man (unfortunately not always in a way I approve) and he is positioned to be a moderating influence on his party, has gotten good press about it, and yet he caved in. I don't know how much to blame the rigid power-structure amongst the R's, but I find it hard to believe he really believes this is merely a parliamentary issue.

    It's really sad that the R's are pursuing pell-mell the solution which that crackpot Sen. Ted Stevens (R-AK) came up with 2 years ago in a fit of pique, as pointed out in a link to the Wahingoton Post in the latest DPO Capital Insider: Senator's Outburst Hatched 'Nuclear Option'.


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