WASHINGTON — Those who lament the Senate Democrats’ vote to end filibusters for presidential nominations say the move will escalate partisan warfare and destroy what comity is left in Congress. Some also charge hypocrisy, since Democrats once opposed the very step they took last week.
In fact, seeing the world as it is rather than pining for a world that no longer exists is a precondition for reducing polarization down the road. With their dramatic decision, Senate Democrats have frankly acknowledged that the power struggle over the judiciary has reached a crisis point and that the nature of conservative opposition to President Obama is genuinely without precedent.
What happened on Nuclear Thursday has more to do with the rise of an activist conservative judiciary than with the norms of the Senate. From the moment that five conservative justices issued their ruling in Bush v. Gore, liberals and Democrats realized they were up against forces willing to achieve their purposes by using power at every level of government. When the Bush v. Gore majority insisted that the principles invoked to decide the 2000 election in George W. Bush’s favor could not be used in any other case, they effectively admitted their opportunism. Dec. 12, 2000, led inexorably to Nov. 21, 2013.
Bush v. Gore set in motion what liberals see as a pernicious feedback loop. By giving the presidency to a conservative, the five right-of-center justices guaranteed that for at least four years (and what turned out to be eight), the judiciary would be tilted even further in a conservative direction.
Bush was highly disciplined in naming as many conservative judges as he could. His appointments of Chief Justice John Roberts and Associate Justice Samuel Alito bolstered the Supreme Court’s conservative majority. The court later rendered such decisions as Citizens United, which tore down barriers to big money in politics, and Shelby County v. Holder, which gutted a key part of the Voting Rights Act. Both, in turn, had the effect of strengthening the electoral hand of conservatives and Republicans.