May 23, 2005

Frist is too cavalier with his party's power

Senate Majority Leader Bill Frist is just getting angrier and angrier. This Wednesday he brought his coercive campaign to an entirely new level, seeking to impress upon Senate Democrats that the plans for the enactment of his infamous "nuclear option" have been set in motion. Although Frist deeply resents the term "nuclear option" for his threatened reconfiguration of the policy surrounding the termination of filibusters within the Senate, he is truly treating what he deems the constitutional option a lot like a weapon of mass destruction. Frist's mission to secure the appointment of controversial judge Priscilla Owen has closely obeyed the rules of nuclear coercion from the beginning. Frist acknowledges the revolutionary nature of his "constitutional option." Throughout the entire filibuster crisis in the Senate, Frist has never ceased to arrogantly brandish his option to threaten Democrats.

As Frist sees it now, Priscilla Owen's nomination would definitely be followed with an interminable filibuster in the Senate. In that way, the "nuclear option" has been a long time coming. Having failed as an instrument of coercion against the Senate Democrats, Bill Frist realizes the need to validate the "nuclear option." It is for this reason that Frist is so intent upon fixing the alternative term "constitutional option" upon his plan for renovation of filibuster policy. Most likely Frist did not initially think it would come to actually executing the "nuclear option." Nevertheless, Frist senses that the time is right to subdue the Senate Democrats and has chosen to do so in the manner of a true politician, under the guise of legitimacy. The validation of his "constitutional option" will be a harder conquest than Frist may believe, however.

At first sight Frist's "constitutional option" may seem more democratic than the current requisite three-fifths majority. Nevertheless, upon closer inspection, it becomes clear that the implementation of Frist's "option" could greatly reduce the ability of the Senate to regulate presidential judicial appointments. The standard for determining a qualified judicial appointee has always been rather vague. Many would argue that Priscilla Owen is more than qualified in terms of her credentials and behavior on the bench. Yet do credentials and past conduct truly constitute a standard for assessing juridical aptitude? Frist's constitutional option basically ensures that these two factors alone provide such a valuable standard. If all that is needed to end a filibuster is a majority vote, then candidates whose politics correspond to the dominant party in the Senate with clean records will be appointed invariably.

There is no doubt that ambitious senators could hypothetically exploit the filibuster to put themselves in the limelight. Regardless, the ability of the minority to filibuster has always checked judicial appointees. Considering that juridical merit is rather difficult to truly determine, the potentially indefinite filibuster is integral to the appointment of both qualified and responsible interpreters of the law. The current policy regarding the filibuster hardly promotes the interests of the minority over those of the majority. Rather, the current filibuster policy maintains both the interests of the majority and the minority in regard to the judiciary. This is not to say that the current filibuster policy is a perfect check on judicial appointees. Frist simply has no justification in replacing the current policy on the grounds that it is in some way undemocratic or unjust. It is better to retain a policy that endorses a somewhat imperfect standard than to adopt a policy that essentially precludes the existence of any sort of standard whatsoever.