Tearing up the rule book – why the ‘nuclear option’ is so significant and so wrong

May 23rd, 2005 | by Andrew Ó Baoill |

There is so much of concern at the moment – the ‘war on terror’, rendition and torture of prisoners for one thing, the shameful response to the Uzbeki massacre for another (word was that the EU would issue harsh words today but not cancel its co-operation agreement with Uzbekistan) – that administrative battles in the US Senate can appear inconsequential.

Why then have I increasingly become convinced of the importance of the current situation? It’s not actually about the judges, it’s about the process that’s being used, the so-called nuclear option. Many reports are saying that the Republicans are going to get rid of the fillibuster for judicial nominations. That’s not quite true – they don’t have enough votes to change that rule. Instead they plan to declare the rule unconstitutional, by fiat, against expert advice. They can do this because Dick Cheney, acting as Senate President, can make rulings on the rules, and his decisions only need to be supported by a simple majority of Senators.

So, it’s a loophole. Except it’s not. A loophole implies you’ve got a case that fits a narrow exception, or you skirt certain requirements. Here instead you have a deliberate and willful mis-interpretation – the claim that the rule is unconstitutional – against the advice of the main advisor on these things, the Senate parliamentarian. To put it simply, Cheney’s decision, if or when he makes it, wouldn’t hold up to the basic standards of judicial review, which concentrates on following due process.

Early last year when I explained to some people in Ireland about the Texas gerrymandering they presumed that there must be widespread outrage at such obvious political manipulation. The problem, I argued, was that a certain amount of political opportunism was presumed – it was when you didn’t give the second major party a reasonable amount of what they wanted, when you didn’t have honour among thieves, that the scandal arose, and it was difficult for most people to see where the cause for outrage was now when it differed merely in extent from what had gone before (you need only look at the shape of some of the congressional districts in downstate Illinois).

Here we have a much more clear-cut case of political corruption. The problem – as Lakoff would no doubt agree – is that it’s all being framed around the right of the Democrats to fillibuster. The true scandal is that the Republicans are discarding the rules. How can the United States claim to be based on ‘rule of law’ when its own Senate cannot be bothered to follow the niceties of procedure?

So is it that they’re being so blatent? Would I prefer if they dressed up their manipulation? Perhaps – it wouldn’t look so contemptuous of the public. But when they get away with doing so much, out in the open and pre-announced, without being called on it by the supposedly-watchdog media or others (other than Democratic party groupings), perhaps they’re right to be contemptuous?

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