The Federalist Option

With the impending showdown in the Senate attracting maximalist positions from right and left, I've found that neither side really seems to be taking the long view. The Democrats are prepared to risk the loss of the judicial filibuster, to try and Judge Owen (whose record is of unalloyed judicial activism) from being appointed. However, they will probably lose that gamble, meaning that the threat of extremist Supreme Court nominees is actually greater. The Republicans meanwhile are ready to destroy the Senate for the sake of raw short-term majoritarian power.

My feeling is that Judge Owen is bad, but the Supreme Court is more important. A compromise along those lines has just been put forth by a reader of Josh Marshall's which I think makes the case very well:

 

Let Owen go through. It will not make the 5th appreciably worse; the only more retrograde Circuit is the 4th. I know it will further imbalance the 5th and violate the dictum laid down by Sen. Schumer. The way I see it is that the 5th is a lost cause or sacrifice area already and for the foreseeable future. But, the DC Circuit to which Judge Brown has been nominated is both more important and more closely divided. Brown is so far out of the mainstream she almost makes Owens look moderate. Brown must be stopped. As must Myers. We need to preserve the independence of other Circuits such as the 9th and reluctantly let the 5th and 4th go even further, if such is possible, to the dark side. We have to depend on the fact that conflicts between circuits are often taken up by the Supreme Court.

strongly agreed. The independence of the Supreme Court is more critical, and the ascension of Owens to the 5th will really just amplify the nature of the 5th Circuit. The reason this appeals to me is that it is really a federalist position - the different regions of the country have different views on these social issues, and arguably the citizens of the South (taken in the aggregate) would no more apreciate the rulings of the 9th Circuit as the citizens of the West Coast would the 5th.

Ultimately, though, I think that the strategy of the Democrats is too principled, and not pragmatic enough. The Republicans are in a maximalist power grab mode, and I fully expect a replay of this showdown when a Supreme Court vacancy arises. That is the appropriate time, however, for Democrats to truly embrace principle and filibuster the nominee if need be. It is questionable whether such a vacancy will arise in Bush's term, but assuming it does, the Democrats can stand together then, and the moderate Republicans will also have less risk to their own careers in opposing the extremists.