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November 08, 2013 12:40 PM Conservatives, Judges and the Golden Calf

By Ed Kilgore

At New York today, Jonathan Chait nicely sorts out why we may be about to have a “nuclear showdown” over judicial appointments. Basically, Republicans are upsetting an unspoken arrangement whereby filibusters are only applied to occasional judicial nominees—i.e. the unapologetic ideologues Bush was trying to put on the bench in the period prior to the “nuclear option” crisis of 2005. The idea is to discourage presidents from going too far in appointing controversial or unqualified judges. By blocking all of Obama’s DC Circuit appointees, none of whom are particularly controversial, Republicans are changing the game in a fundamental way.

What I’d add is that it’s important to understand the peculiarly powerful role that the federal judiciary plays in the worldview of the “constitutional conservatives” who exert so much power in the GOP these days. From their point of view, judges are supposed to be defenders of an unchanging constitutional scheme as against the self-interested demands of popular majorities and demagogic pols who are forever to be suspected of schemes to use government to loot private property and create a Golden Calf of state power. Instead, they believe, federal judges have become the great enablers of and cheerleaders for the Golden Calf. So any judge who isn’t committed to a sort of constitutional counter-revolution is by definition unacceptable.

This helps explain why Republicans so nimbly moved from wanting to ban judicial filibusters in 2005 to wanting to use them indiscriminately today (yes, conservatives claim Democrats have executed a similar flipflop, but (a) not all of them are on board with the “nuclear option” and (b) they never tried to block every Bush nominee). And it’s why a compromise that averts the “nuclear option” may be impossible to achieve, particularly with senators like Lindsey Graham frantic to propitiate the constitutional conservative furies.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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