Kennedy was the showy performer in that ugly spectacle, but Senator Biden, as chairman of the Judiciary Committee, was the stage director. Prior to Bork’s nomination, Biden had in fact said that he would support it: Bork was, after all, a distinguished legal scholar with a long history in public service. Bork had many challenges in front of him: For one thing, he was very sharp-elbowed in intellectual disputes, which had not won him very many friends.
.. The Senate majority leader at the time was Democrat Robert Byrd, a man who had rejoiced in the title of Exalted Cyclops of the Ku Klux Klan, and who held a grudge against Bork for his role in the Watergate scandal, during which Bork had fired special investigator Archibald Cox on the orders of President Richard Nixon.
.. The Senate majority leader at the time was Democrat Robert Byrd, a man who had rejoiced in the title of Exalted Cyclops of the Ku Klux Klan, and who held a grudge against Bork for his role in the Watergate scandal, during which Bork had fired special investigator Archibald Cox on the orders of President Richard Nixon.
.. The Democratic primary field was very full: There was Biden
.. Biden could not afford to stand by his earlier assessment of Bork and announced his opposition to the nomination shortly after it was made formal.
.. 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 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.
.. 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 possible
.. 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.
.. 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.
.. 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.
.. The recently proffered Republican health-care bill instantiates much of what is wrong with our politics:
The bill was constructed through an extraordinary process in which there were
- no hearings,
- no review from the Congressional Budget Office, and
- no final text of the legislation until shortly before the vote.
- The process is erratic and covert rather than regular and transparent.
- It was put together in a purposeful way to avoid substantive debate and meaningful public discourse,
making the most of the majority’s procedural advantages for purely political ends.
.. As Rod Dreher recently put it, Republicans will have to choose whether they love the rule of law more than they hate the Left.
.. Republican populists who argue that the GOP must play by the same rules in the name of “winning” have very little understanding of what already has been lost and of what we as a nation stand to lose.
The United States will not thrive, economically or otherwise, in a state of permanent emergency.
.. What’s truly remarkable about our current constant national state of emergency is that no one can say exactly what the emergency is. But we all seem to be very sure that something has to be done about it right now, that we must rouse ourselves to excitement about it, and that the ordinary rules of lawmaking and governance no longer apply.
There is not much political mileage to be had from arguing for regular order, transparency, and procedural predictability — but that’s part of what makes those things so valuable. Order in the little things is a necessary precondition of order in the big things. Orderly government cannot be built on a foundation of procedural chaos.