by Stuart Taylor Jr.

How the Republicans Lost Their Majority

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November 9, 2008—The Republican Party's stunningly swift swoon from controlling the presidency, the House, and the Senate to losing all three is rooted in what conservatives saw not long ago as their greatest triumph.

That was the use of an unprecedented parliamentary power play in April 2005 to ban filibusters of judicial nominees and the subsequent takeover of the Supreme Court by Bush-appointed justices bent on rolling back decades of liberal precedents.

The president chose fervently conservative nominees in 2005 to succeed Chief Justice William Rehnquist and in 2006 to succeed the more centrist Sandra Day O'Connor and the liberal John Paul Stevens. All three nominees inspired passionate liberal opposition and might have been stopped by Democratic filibusters under the old Senate rules. But in a parliamentary move widely known as the "nuclear option," Republicans voted 52-48 (with three defections) to uphold a ruling by Dick Cheney, as president of the Senate, that it was unconstitutional to use the filibuster to block a vote on any nominee who had majority support.

With Democrats thus neutered, the Senate narrowly confirmed in near-party-line votes all of Bush's choices to succeed Rehnquist, O'Connor, and Stevens. Once on the Court, the three new justices allied with Antonin Scalia and Clarence Thomas to form the most cohesive, conservative majority bloc in seven decades.

In a succession of blockbuster 5-4 rulings, the Bush Court in 2007 approved state-sponsored prayers at public school functions such as graduations and football games (overruling the 1992 decision Lee v. Weisman); went out of its way to overrule Lawrence v. Texas, the 2003 decision that had recognized a constitutional right to engage in gay sex; and struck down key aspects of the Endangered Species Act as unconstitutional overextensions of Congress's power to regulate interstate commerce.

Then, this June, the same five justices banned consideration of race in state university admissions, overturning another 2003 precedent (Grutter v. Bollinger); this ruling sets the stage for a dramatic plunge in black and Hispanic enrollments at elite schools. Two days later, the same five-justice majority overturned Roe v. Wade, holding that it was up to elected officials to decide whether to allow unlimited access to abortion, to ban the procedure, or to specify circumstances in which it should be allowed or banned.

This last decision roiled the country and immediately transformed many elections—for state legislature, governor, Congress, and the presidency—into referenda on abortion. Republican candidates at all levels found themselves facing a politically impossible choice that put many on the road to defeat: Those who declared their support for a broad ban on abortion scared moderates into the arms of the Democrats. Those who opposed such a ban, or waffled, were deserted by much of their conservative base.

One of several nuclear-option ironies is that Bush's success in ending Democratic filibusters of his nominees had the side effect of pressuring him into choosing justices more hostile to the Court's precedents than he apparently wanted, while keeping him from nominating candidates whom he would apparently have preferred.

After all, Bush has never called for overruling Roe, for allowing states once again to make gay sex a crime, for reinstating state-sponsored prayer in schools, for striking down environmental laws, or for banning racial preferences in admissions—all of which the Bush Court has now done. Indeed, the president had greeted as a great victory the now-overruled 2003 decision that race could be given decisive weight in university admissions. Attorney General Alberto Gonzales, a personal favorite whom Bush clearly wanted to put on the Supreme Court, had also praised that ruling, while giving no hint of any desire to attack any of the other precedents that the Bush Court has now dismantled.

But once the nuclear option had rendered the Democrats helpless to stop virtually any Bush nominee, conservative activists—for whom control of the judiciary had long been the Holy Grail—were emboldened to put heavy pressure on Bush from the right. They organized a "stop-Gonzales" movement and signaled that any nominee too moderate for their taste would be denounced as a betrayal of a campaign promise and would so alienate conservatives as to relegate Bush to premature lame-duck status. So Bush gave the conservative groups the justices they wanted.

This is not to suggest that any of the three impeccably qualified new justices could fairly be called "extremist," the brand applied by liberal groups. Indeed, many moderate as well as conservative scholars see all five of the big Bush Court decisions mentioned above as quite reasonable interpretations of the Constitution. And most of them were in sync with public opinion; the abortion, prayer, and gay-sex decisions simply returned to the domain of democratic governance issues that the Court had previously declared off-limits to elected officials.

But the specter of a conservative Republican steamroller taking over the judicial as well as the executive and legislative branches—and then engineering sudden, sweeping change in previously settled interpretations of the Constitution—eclipsed debate over the individual merits of the Court's decisions. A lot of voters found the whole business scary.

And not just liberal voters. Many moderates were also alarmed. This started with Republican attacks on the judiciary in the spring of 2005, as Senate Majority Leader Bill Frist cozied up to groups that smeared opponents of Bush's judicial nominees as "anti-Christian" and as House Majority Leader Tom DeLay vowed: "We set up the courts. We can unset the courts." The alarm ratcheted up when Senate Republicans unleashed the nuclear option, and up again with each successive party-line vote adding another member to the Court's conservative bloc and with each new decision overturning another Supreme Court precedent.

The flames were fanned by the campaign run by many in the media and academia to portray every new appointment and every new decision as part of a vast right-wing conspiracy to pursue an agenda more radical than any of the new justices seems interested in pursuing. This alleged agenda includes holding key New Deal laws unconstitutional, ending federal regulation of the economy in the name of states' rights, crippling state regulation in the name of property rights, and perhaps even imposing a Christian quasi-theocracy on the nation. Many liberals associate this (largely imaginary) agenda with what they call the conservative "Constitution-in-exile movement"—a group of not-very-powerful people whose leaders could fit into one phone booth and have little influence on any justice except (sometimes) Thomas.

But while the Bush Court's agenda is not as extreme as liberal critics claim, it is striking in its disregard for what lawyers call the doctrine of stare decisis—"let the decision stand." Justices have traditionally deferred to precedents, even to those with which they disagree (except in extraordinary cases), in the interest of stability in the law. That was the basis on which, for example, Justices O'Connor, Anthony Kennedy, and David Souter agreed in 1992 to reaffirm the "essential holding" of Roe v. Wade, while strongly implying that there was little support for Roe in the Constitution.

But the new conservative bloc shows no such respect for precedent. While Scalia defers to decisions that he considers firmly settled, he joined in overruling Roe, Lawrence, Grutter, and Lee. As for Thomas, "he doesn't believe in stare decisis, period," Scalia once said, according to Ken Foskett's 2004 book about Thomas. To many moderate voters, the Bush Court seems all too eager to take a buzz saw to forests of established law.

Thus did the Democrats luck into their historic opportunity. Judges aside, the Democrats got lots of help from the burden placed on the economy by Bush's soaring budget deficits and from the angry rhetoric of the Republican Right. The Democratic Left did its best to blow the election by pushing for one of its own as presidential nominee. But when Hillary Rodham Clinton split the liberal vote with the McGovernite, business-bashing Howard Dean in the primaries, it cleared the way for the moderate, surprisingly charismatic dark horse who took the nomination. And that set the stage for the astonishingly successful campaign to sweep the newly energized moderate vote and snatch the presidency, the Senate, and the House from the Republicans.

Now, with Senate Republicans vowing to filibuster the president-elect's plan to repeal most of Bush's tax cuts for the wealthiest Americans, Democrats are planning a nuclear option of their own. On the first day of the new Congress, in January, they plan to extend the April 2005 ruling against filibusters of nominees to ban legislative filibusters too.

All that stands in the way of total Democratic hegemony is what Democrats call the "conservative activist" federal courts. Says one, gleefully mimicking DeLay: "We set up the courts. We can unset the courts."