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Legislating Hysteria

Another gem from Kevin Williamson, A National State of Non-Emergency in National Review:

What people remember of that episode is Senator Edward Kennedy’s infamous speech describing “Robert Bork’s America,” “a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”

Congress is organized under parliamentary rules, and where there are such rules there always will be procedural shenanigans. The filibuster, for example, has not always been used for the most reputable of purposes: The 14 hours Senator Byrd had spent filibustering the Civil Rights Act of 1964 did not prevent him from becoming the Democratic leader in the Senate. The legislative calendar, committee hearings, and such relatively modern innovation as budget reconciliation all have been used in the service of petty politics, which is what politicians do. Complaining about that is like complaining about how wet the water is. But scope and scale and context matter, too. Republican Bob La Follette may very well have been on the wrong side with his 1917 filibuster of a bill that he believed (correctly) would lead the United States to intervene in the Great War, but that was a matter of genuine national and historical consequence. Congress may have erred in abbreviating the usual legislative process to pass the PATRIOT Act, but the sense of urgency was proper and legitimate.

The Bork nomination, on the other hand, was an ordinary piece of government business elevated by Democrats to the status of national emergency in the service of narrow partisan interests. Biden was running for president, Kennedy was running for conscience of the Democratic party, and Byrd, frustrated by Republicans’ lack of cooperation on a number of his spending priorities, had promised: “They’re going to pay. I’m going to hit them where it hurts.” The hysteria and vitriol directed at Bork were of a sort rarely seen since the early 19th century. But they quickly became commonplace.

Normalizing Crisis

Another gem from Kevin Williamson, A National State of Non-Emergency in National Review:

But the rules of the game are not all there is to the game. What in another context might be called “sportsmanship” is in politics a question of prudence and even of patriotism, forgoing the pursuit of every petty partisan advantage made possibly by the formal rules of the legislative and political processes in deference to the fact that governance in a democratic republic requires a very large degree of cooperation and forbearance. The progress from Robert Bork to Merrick Garland is a fairly obvious story, but there is more to it than that: The increasing reliance upon legislative gimmicks such as omnibus spending bills and retrofitting legislation to fit with the budget reconciliation process, the substitution of executive orders and open-ended regulatory portfolios (“the secretary shall . . . ”), the prominence of emergency “special sessions” in the state legislatures, the absence of regular order in the legislative and appropriations process — all are part of the same destructive tendency. Procedural maximalism in effect turns the legislative system against itself, substituting the exception for the rule and treating every ordinary item of business as a potential emergency item.

The Democrats did not filibuster Bork’s nomination — at the time, their numbers in the Senate were enough to secure their victory without a filibuster. But the course they set in those hearings — one of maximal confrontation, of reaching for whatever procedural cudgel is close at hand — led directly to our current state of governmental dysfunction. As always, judgment matters: One may appreciate that the existence of the filibuster is prudent and desirable without wishing to see it used on every potentially controversial nomination or piece of legislation. It is perfectly acceptable to believe that Robert Bork had the wrong idea about the Constitution, but it is another thing entirely to treat as a national crisis the fact that a judicial nominee has ideas at odds with Joe Biden’s ideas — or with Joe Biden’s ambitions.