marchand chronicles

Marchand Chronicles: Al Gore's MoveOn Speech

Counterstrike
Mike Marchand
The Marchand Chronicles
May 2, 2005

It's understandable that Al Gore is unsatisfied with his probable place in history, in the roll call of just-missed presidential candidates alongside Samuel Tilden and Thomas Dewey. Even though he's no longer the flag-bearer of the Democratic Party, he remains a central figure therein, as the disputed result in the 2000 presidential election jumpstarted donations and activism for the despondent left wing.

Last week, he delivered a speech at a MoveOn.org rally concerning the Senate standoff over judicial nominations (transcript from RCP). Not surprisingly, Gore opposes the "nuclear option" to break the Democrat-led filibusters, and his address was chock-full of just the kind of boilerplate sloganeering that Democrats will use as their talking points for the issue.

Gore opened his address with a personal anecdote, about how he reacted after losing the Supreme Court decision in 2000 that prevented him from becoming president:

Even though many of my supporters said they were unwilling to accept a ruling which they suspected was brazenly partisan in its motivation and simply not entitled to their respect, less than 24 hours later, I went before the American people to reaffirm the bedrock principle that we are a nation of laws, not men. "There is a higher duty than the one we owe to a political party," I said. "This is America and we put country before party."

The demonstrators and counter-demonstrators left the streets and the nation moved on — as it should have — to accept the inauguration of George W. Bush as our 43rd president.

This is curious for a couple of reasons: first because the Gore team attempted to subvert Florida election law with the willing cooperation of the State Supreme Court; second because groups like MoveOn never really "moved on." To this day, many people have yet to accept Bush's legitimacy. But never mind that now. Gore immediately followed that up with his thesis:

Having gone through that experience, I can tell you — without any doubt whatsoever — that if the justices who formed the majority in Bush v. Gore had not only all been nominated to the court by a Republican president, but had also been confirmed by only Republican senators in party-line votes, America would not have accepted that court's decision.

Moreover, if the confirmation of those justices in the majority had been forced through by running roughshod over 200 years of Senate precedents and engineered by a crass partisan decision on a narrow party-line vote to break the Senate's rules of procedure — then no speech imaginable could have calmed the passions aroused in our country.

The reason why the Supreme Court justices weren't confirmed by party-line votes (with the then-exceptional case of Clarence Thomas) and weren't forced through by altering filibuster rules is because both actions, until recently, just weren't done.

Moreover, as the old saying goes, it takes two to tango. If any decision comes down to a party-line vote, then by definition both sides are being politically stubborn. But the odd logic emanating from the Democrats on this issue is that their own voluntary decision to be intractably partisan is the Republicans' fault. Gore will offer the justification for this later, but all that needs to be said is that the Democrats are the ones infringing upon tradition by making confirmation votes a party-line matter and by invoking filibusters, backed by the entire party, on multiple nominees.

Later, Gore conjures up our Founding Fathers, and proceeds to haul out the Ouija board and read their minds:

Our founders gave no role to the House of Representatives in confirming federal judges. If they had believed that a simple majority was all that was needed to safeguard the nation against unwise choices by a partisan president, they might well have given the House as well as the Senate the power to vote on judges.

But they gave the power instead to the Senate, a body of equals, each of whom was given a term of office three times longer than that of a representative, in order to encourage a reflective frame of mind, a distance from the passions of the voters and a capacity for deliberation. They knew that the judges would serve for life and that, therefore, their confirmation should follow a period of advice and consent in which the Senate was an equal partner with the executive.

Gore has to divine the Founders' intentions in this manner because if he had actually read the Constitution, he would have found no evidence for his theory. The Constitution wasn't written to protect political minorities from undue partisanship. As far as that goes, at the time the Constitution was written, senators didn't face "the passions of the voters," since senators weren't popularly elected until the 17th Amendment was ratified in 1913. As for the Senate existing as an "equal partner" . . . wait, Gore's continuing, I'll get to it in a second:

Alexander Hamilton, in Federalist #78, wrote that the "independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill-humors which the arts of designing men . . . have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."

"Help! Help! We're being 'seriously oppressed'! Come see the violence inherent in the system!"

Had Gore, instead of memorizing one pull-quote, read the entirety of Hamilton's words in Federalist #76, specifically concerning the role of presidential appointments and senatorial confirmations, he would never have baldly asserted that the Senate is supposed to be co-equal with the President in order to prevent excess partisanship. Here's what the Founding Fathers truly believed:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. (emphasis added)

In other words, Bush can't nominate Larry Joe Doherty just because he's from Texas, or his brother Jeb, or Karl Rove, or Simon Cowell.

And even if the Senate were considered a co-equal partner by the Constitution and its creators, given the near-nonexistent use of the filibuster against judicial nominees for two centuries, it certainly doesn't follow that the filibuster is the Founders' preferred method for senatorial "advice and consent." Al Gore might mention that now, if he didn't have some bogeymen to unleash:

I am genuinely dismayed and deeply concerned by the recent actions of some Republican leaders to undermine the rule of law by demanding the Senate be stripped of its right to unlimited debate where the confirmation of judges is concerned, and even to engage in outright threats and intimidation against federal judges with whom they philosophically disagree.

And there followed nearly 400 words of scary quotes from unnamed Republicans (except Tom DeLay, who was very specifically named). Some were relevant; others, like Ann Coulter's remark that "liberals should be physically intimidated," were not (that remark concerned the possible execution of John Walker Lindh, captured while fighting for the Taliban in late 2001. What does that have to do with judicial confirmations in 2005? Nothing, but dropping a Coulter quote at a MoveOn rally is like tossing a dead animal carcass in the hyena pen at the zoo). After Gore torched every Republican straw man he could find, he then turned on what he saw as the real problem: "extremist organizations," presumably with extreme names, like . . . the Family Research Council, and Focus On The Family.

Whatever.

Anyway, a few more menacing pull-quotes, some comparisons to the religious persecutions that drove immigrants to the New World in the first place, then came this howler:

I remember a time not too long ago when Senate leaders in both parties saw it as part of their responsibility to protect the Senate against the destructive designs of demagogues who would subordinate the workings of our democracy to their narrow factional agendas.

You don't say, Mr. Vice-President? I do, too!

More beware-the-zealots gobbledygook ensued, complete with a reference to Sir Thomas More and the play A Man For All Seasons, then finally Gore makes his point . . . kinda:

The Senate leaders remind me of More's son-in-law. They are now proposing to cut down a rule that has stood for more than two centuries as a protection for unlimited debate. It has been used for devilish purposes on occasion in American history, but far more frequently, it has been used to protect the right of a minority to make its case.

After this duplicitous blurring of the issue, confusing senatorial legislative filibusters, which is their sole dominion granted by Article I of the Constitution, with judicial filibusters, an extra-constitutional commandeering of the president's rights under Article II, there came yet more allusions: to the nascent Iraqi government, to the book of Isaiah, to the labeling of "crises" of the Iraq war and Social Security (remember: it's a MoveOn rally; more dead animal carcasses in the hyena pen). At last our 12th-level Vice President arrived at something resembling the actual argument:

I served in the Senate for eight of my 16 years in Congress — and then another eight years as president of the Senate in my capacity as vice president. Moreover, my impressions of the Senate date back to earlier decades — because my father was a senator when I was growing up.

From that perspective, I have listened with curiosity to some of the statements made during the current debate. For example, I have heard the Senate Majority Leader, who is from my home state and should know better, say that no court nominee has ever been filibustered before the current president's term. But I vividly remember not only the dozens of nominees sent to the Senate by President Clinton who were denied a vote and filibustered by various means, I also remember in 1968 when my father was the principal sponsor of another Tennessean — Abe Fortas — who was nominated to be chief justice by President Lyndon Johnson. Fortas was filibustered and denied an up or down vote. The cloture vote was taken on October 1, 1968.

When it failed by a vote of 45-43, President Johnson was forced by the filibuster to withdraw the nomination.

Gore spent so much time puffing up his grand rhetorical allusions that he only has time to give the briefest possible précis of actual history. He left a lot out. For example, while Republicans did employ various and sundry methods to block many judicial nominees during Bill Clinton's term, they were the majority party in the Senate. Senate majorities of one party often play hardball with judicial nominees offered by a president of the other party. After Jim Jeffords bolted from the GOP in 2001, the Democrats enjoyed a majority and bottled up plenty of President Bush's nominees. It's a shady practice, but completely allowable. But even then, during the first two years of Clinton's term — when the Republicans were the minority, like the Democrats are a minority now — every last one of his appellate court nominees were voted on and confirmed.

Not "dozens," but exactly half a dozen times in the late 1990s did Republicans attempt to filibuster Clinton's nominees. In every case they failed, because GOP leadership refused to put true muscle behind them. All six got up-or-down votes; furthermore, all six were confirmed. Hence why Gore didn't bother naming any of the Republicans' victims: they all sit on court seats right now.

Only once before 2003 has any cloture vote (vote to end debate) fail for any judicial nominee, and Gore was correct: it was for Abe Fortas. Since Gore didn't spell it out, only keen spotters would note that October 1, 1968 was about a month before the presidential election that year; a contest in which President Johnson was not running. Therefore, he was already somewhat of a lame duck. Abe Fortas was surrounded by several clouds of scandal, so his nomination was almost certainly doomed; he was filibustered most likely because at the time he was a sitting Supreme Court justice, so the Senate was probably attempting to be gentle in its rejection. The filibuster was a bipartisan effort, and Fortas took the hint: he withdrew himself from nomination shortly thereafter and resigned from the Supreme Court eight months later because of yet another scandal (yummy Fortas entrees from Hugh's Place).

Of course, that's not how Gore tells it: evidently his "impressions" of his dad's tenure in the Senate are as reliable as his knowledge of the Constitution. According to Gore, the filibuster "forced" LBJ to withdraw Fortas from consideration, as if it were perfectly natural for the Senate to hold veto power over judicial nominees, or for the filibuster to be a binding refusal, as a floor-vote rejection would be.

A natural reaction would be to assume that Bush's slate of judicial nominees are, in Alexander Hamilton's words, "unfit characters," just as Fortas was, and Al Gore tries as hard as he can to convey that. Unfortunately, from these "seven judicial fanatics," he can only hunt up one frightening pull-quote. One. That's all. When it comes to Republican maliciousness or Christian zealotry, all manner of scary statements are deployed, but these seven nominees are so awful that one sentence is all that can be found to demonize them. Absent any further genuine evidence of unfitness for judicial tenure, Gore must buttress his argument with demagoguery:

[I]f these nominees should ever be confirmed, they would, as a group, intervene in your family's medical decisions and put a narrow version of religious doctrine above, not within, the Constitution. They have shown by their prior records and statements that they would weaken the right to privacy and consistently favor special interests at the expense of middle class America by threatening the minimum wage, worker & consumer protections, the 40-hour workweek, your right to sue your HMO, and your right to clean air and water.

Mmm, dead animal carcasses.

It's no accident that this is straight out of the "How To Bork Nominees" playbook. Gore now owes royalties to Ted Kennedy, who quite famously spewed this tirade against Robert Bork in 1987:

Robert Bork's America is 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 government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are at the heart of our democracy.

P.S.: Bork . . . wasn't filibustered.

But Gore's biggest jaw-dropper was yet to come:

Our founders understood that there is in all human beings a natural instinct for power. The Revolution they led was precisely to defeat the all-encompassing power of a tyrant thousands of miles away.

They knew then what Lord Acton summarized so eloquently a hundred years later: "Power tends to corrupt and absolute power corrupts absolutely."

They knew that when the role of deliberative democracy is diminished, passions are less contained, less channeled within the carefully balanced and separated powers of our Constitution, less checked by the safeguards inherent in our founders' design — and the vacuum left is immediately filled by new forms of power more arbitrary in their exercise and derived less from the consent of the governed than from the unbridled passions of ideology, ultra-nationalist sentiments, racist, tribal and sectarian fervor — and most of all, by those who claim a unique authority granted directly to them by the Almighty.

That is precisely why they established a system of checks and balances to prevent the accretion of power in any one set of hands — either in one individual or a group because they were wary of what Madison famously called "factions."

The next time I hear this argument, I swear on Antonin Scalia's funny-looking hair that I'm going to go on a rampage. This will be the interview from the news report you'll see on CNN:

REPORTER: What happened?

MOVEON MEMBER: Well, I was just minding my own business, holding up a sign that says "Preserve Our Checks & Balances," when some lunatic carrying a large bag and shrieking about dead animal carcasses and hyena pens came from out of nowhere —

REPORTER: What did he do?

MOVEON MEMBER: Well, he pulled something from out of the bag and struck me over the head with it several times before dropping it in my lap and running away.

REPORTER: What was it?

MOVEON MEMBER: It was . . . it was . . . [starting to cry] . . . a civics textbook!

I don't know why, but for some reason I expected a former vice president to be able to get correct the same sort of introductory-level civics concepts immigrants have to learn in order to pass citizenship tests. But no, Al Gore has just proven he'd flunk fifth-grade social studies.

"Checks and balances" doesn't refer to the relationship between Republicans and Democrats. It doesn't even refer, in the broader sense, to the relationship between political majorities and minorities. It refers to the relationship between the different branches of government.

As noted earlier, the filibuster — as it's been used almost exclusively, as a legislative maneuver — is an intra-senate rule. Article I of the Constitution gives the Senate the right to pass whatever rules it sees fit for how it conducts business. The several modifications in the filibuster rule stand as testament to this decision. If the Senate wants to alter the rules of the filibuster, or mandate that all senators must be holding a conch shell to speak, or order that Flemish is the only language permissible to be spoken on the floor — that's their prerogative.

However, filibustering the President's judicial nominees is an unconstitutional usurpation of the executive's role as outlined by Article II, and, hence, is the only violation of "checks and balances" that's actually occurring. Again, Gore is outlining the planned Democrat response to the "nuclear option": blame the Republicans for precisely what they're doing: whether it's excessive partisanship, derailing Senate tradition, or abusing checks and balances. It's as logical as a con artist calling the police complaining that he'd been suckered.

Gore finally brings it all home in his conclusion:

The rules and traditions of the Senate all derive from this desire to ensure that the voice of the minority could be heard. The filibuster has been at the heart of this tradition for nearly the entire 230 years of the Senate's existence. Yet never before has anyone has felt compelled to try to eliminate it.

Even absent a filibuster, the minority's voice gets to be heard; the filibuster guarantees that the minority's will be followed. In a majority-rule country, that's not a tradition. The filibuster being used seven times to attempt to block judicial nominees in 228 of those 230 years is not a tradition. Just another of Gore's twisted little ironies:

The proposal from the Senate majority leader to abolish the right of unlimited debate is a poison pill for America's democracy. It is the stalking horse for a dangerous American heresy that would substitute persuasion on the merits with bullying and an effort at partisan domination.

Sure; who needs "persuasion on the merits" when various rhetorical dead animal carcasses will do? Duly elected Republican majorities are "extremists," Christian leaders are "zealots" — but Gore's not being a bully. Democrats didn't even use their so-called hallowed tradition of filibusters to attempt to block hated nominees like Robert Bork or Clarence Thomas — but they're not engaging in "partisan domination."

It's a shame. I remember when, not all that long ago, an ex-Vice President's responsibility was "to protect the Senate against the destructive designs of demagogues who would subordinate the workings of our democracy to their narrow factional agendas." Too bad Al doesn't.

posted by Marsh @ 11:20 AM