The Impending Senate Vote on Confirming Nominees

The larger forces coming together on Capitol Hill

For now I'll skip the full parsing of why it is hysterical to use the term "nuclear option" to describe the rule-change Sen. Harry Reid says he will propose soon. Namely, allowing an administration to have its nominations approved (or rejected) the way the Constitution specifies, through a majority vote, rather than being subjected to routine veto/delay by filibuster. For a quick refresher and antidote to "nuclear option" thinking, see this, by Jonathan Bernstein. Also an assortment of articles linked from here and here. (And this very good piece by Alec MacGillis in TNR.) Pay-off graf of the Bernstein piece:

[Senate Minority Leader Mitch] McConnell, ever since January 2009, has treated filibusters as routine and universal. That's brand new. There have been filibusters of executive branch nominees before, but only in rare cases. Almost all the time, under all previous presidents, the Senate had a simple majority hurdle, not a 60 vote hurdle, for executive branch appointments. Nominees didn't have to get cloture; they only needed to get a simple majority.

That is the historical distortion that Reid's move is intended to offset. But what else is going on? Here are two reader dispatches to tide us over until we see what happens. The first is from Mike Lofgren, long-time aide (now retired) to Republicans in Congress and author of the celebrated The Party is Over. He writes about the paradox of modern American government simultaneously being too weak and too strong:

Your posts go some way in explaining the current political situation, but by no means do they go the whole way. A more complete explanation has to acknowledge the paradox of the contemporary American state. On the procedural level that the public can see, Congress is hopelessly gridlocked in the worst manner since the 1850s; that is true. The objective of the GOP is, obviously, to render the executive branch powerless, at least until a Republican president is elected (and voter suppression laws in the GOP-controlled states are clearly intended to accomplish that result). As a consequence, Obama cannot get anything done; he cannot even get the most innocuous appointees in office. 

Yet he can assassinate American citizens without due processes (Holder's sophistry to the contrary, judicial process is due process); can detain prisoners indefinitely without charge; conduct surveillance on the American people without judicial warrant; and engage in unprecedented -- at least since the McCarthy era -- witch hunts against federal employees (the so-called insider threat program). At home, this it is characterized by massive displays of intimidating force by militarized federal law enforcement agencies and their willing handmaidens at the state and local level. Abroad, Obama can start wars at will and pretty much engage in any other activity whatever without so much as a by-your-leave from Congress, to include just recently forcing down a plane containing a head of state. And not a peep from congressional Republicans, with the exception of an ineffectual gadfly like Rand Paul. Democrats, with the exception of a few like Ron Wyden, are not troubled, either -- even to the extent of permitting obvious perjured congressional testimony by certain executive branch officials. 

Clearly there is government, and then there is government. The former is the tip of the iceberg that the public who watches C-SPAN sees daily and which is theoretically controllable via elections. The subsurface part is the Deep State, which operates on its own compass heading regardless of who is formally in power. The Deep State is a hybrid of national security and law enforcement agencies, key nodes of the judiciary (like FISC, the Eastern District of Virginia, and the Southern District of Manhattan); cleared contractors, Silicon Valley (whose cooperation is critical), and Wall Street. 

This combination of procedural impotence on the one hand and unaccountable government by fiat on the other is clearly paradoxical, but any honest observer of the American state must attempt to come to grips with it. I will note in conclusion that in order for the Senate to pass major "social" legislation like immigration reform, it was necessary to grant an additional $38-billion tribute to Deep State elements, i.e., military and homeland security contractors. Clearly the GOP wanted it, but the Democrats didn't object; the $38 billion had been an internal "wish list" of the Deep State node called the Department of Homeland Security.

Next, from Mark Bernstein, head of the Eastgate software company and a former guest blogger here. He describes a different paradox: why one of the two parties supposedly competing for leadership of American governance seems indifferent or actively hostile to the idea of governance.

I happen to be reading Antonia Fraser's new account of the Reform Act, Perilous Question: Reform or Revolution? Britain on the Brink, 1832.  Not my usual thing, but a TLS reviewer loved the book...

What's striking to me about the fight of Reform -- essentially reapportionment --  is not that the institutions were sounder or the people better, but that the fear of disaster was shared by both the radicals, who could easily envision a military dictatorship, and by the ultraconservatives, who could easily imagine revolution followed by Terror.  Both sides were intransigent but even the fire-eaters could see something to fear on each flank. Reform came because a majority feared insurrection more.

The same has often been true in the US, even at times of great polarization.  In the Civil Rights struggle, even solid Southerners like Johnson and Ervin knew that there was something worse than integration: they could see it in Watts and Detroit, and the South had feared it since Toussaint Louverture's revolt in Haiti.  In the Great Depression, even staunch Republicans could imagine something worse than the New Deal: they could see it in the Bonus Army and they could see it in Moscow. The story of the Great Compromises is entirely driven by knowledge that the terrible swift sword was credible and the Judgment could not forever be postponed. 

But is that true today?  We have credible threats of right-wing violence: the 2000 white-collar riot in Florida, Josh Marshall's litany of strange right-wing private militias and mercenaries, the whole fever dream of assault-weapon resistance to Big Government or Blue Helmets. But no one really worries anymore about the extreme left -- about revolution. We have no Eugene Debs, no Malcom X, not even a Henry Wallace; when the right needs to conjure up a Radical for rhetorical effect, the best they can manage seems to be Bill Ayers, a primary education activist!  A thriller writer can easily imagine a right-wing takeover, and they do: Seven Days in May, The Handmaid's Tale. Nobody can see a plausible left-wing takeover; when Hollywood needs one, it conjures up things like Chinese Fleets or Space Aliens.

This means that the Right feels free to be irresponsible because the worst possible government is the government they already have. Any left-wing president is always going to be looking at a largely right-wing judiciary and a largely right-wing military; they can easily imagine a very bad government and have good reason to take steps to prevent it.  But, if the right truly believes this is the worst of all possible governments, they have no need to be reasonable because their unreasoning cannot be punished.