The Nuclear Option, Algeria and David Hume’s Perfect Commonwealth
What has the Algerian Civil War of the 1990s got to do with the dictatorial way the US Senate Republicans have begun acting with regard to judicial appointments? The war pitted secular and religious forces against one another, killing over 100,000 persons in constant village massacres and urban assassinations over more than a decade. One of the extreme religious factions, the Armed Islamic Group (French acronym GIA), became angered at US and French support for the secular-leaning military government.
The Algerian Civil War is an intimate part of the US War on Terror. The GIA established a cell in Montreal and loosely hooked up with al-Qaeda affiliates planning a spectacular set of bombings for New Year’s Eve, 2000. Part of the Millennial Plot targeted tourist hotels in Jordan, which would have been overflowing with American Christian tourists eager to visit the Jordan River and other religious sites. The Montreal cell decided to blow up Los Angeles Airport, and sent Algerian petty thief Ahmed Ressam with a trunkful of high explosives to carry out the operation. He was apprehended by alert US border inspectors at the entry point to Washington state.
The Algerian Civil War and the GIA Millennium Plot was provoked by a crisis that was foreseen by US Founding Father James Madison. You see, the military government announced in the late 1980s that it would hold free elections for parliament. Unexpectedly, in 1991, the fundamentalist Islamic Salvation Front won 188 of the 231 seats contested in the first round. It was clearly headed for an overwhelming majority. The problem was that the Algerian constitution then allowed parliament to amend the constitution by a simple majority vote, which would then be approved in a popular referendum. (Unlike in the US, the provinces had no say in the matter, and anyway provincial governors are appointed by the central government everywhere in the Arab world except Iraq).
The Algerian military could plainly see that the Islamic Salvation Front (French acronym FIS) could now change the constitution at will. It could arrange for there never to be another vote, if the fundamentalists so desired. It could have the Algerian officer corps taken out and shot if it liked (as had happened in revolutionary Iran). It is not clear that FIS would have gone that route. But in strategy you don’t worry about your opponents’ intentions, you worry about their capabilities.
The military therefore cancelled the election results. The fundamentalists were enraged and turned to violence and terrorism. All this happened because Algeria was structured as an uncomplicated democracy where a tyranny of the majority was enabled by the constitution, and where a single religion-backed faction could hope to impose its will on the whole country, with no real checks or balances.
It is away from our republican system and toward the old Algerian system of simple majority rule that the Bush administration is now attempting to take us. And it will will produce the same turmoil and violence, ultimately, as the rather stupid 1963/1976 Algerian constitutions produced in that country.
In his press conference on last Thursday, President Bush said, “Speaking about judges, I certainly hope my nominees get an up-or- down vote on the floor of the Senate. They deserve an up-or-down vote. I think, for the sake of fairness, these good people I’ve nominated should get a vote. And I’m hoping that will be the case as time goes on.”
But they do not deserve an up-or-down vote. They don’t deserve anything at all.
Article 2, Section 2, Clause 2: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . .”
The senators have to consent. In the case of the presidents’ treaties (which affect their prestige and often policies much more than a mere judicial appointment) there even has to be a 2/3s majority in concurrence. Such a supermajority is not required for the appointments, but there is clearly no presumption that the president should be deferred to by the senate. The president should be consulting beforehand, which would have made consent easier to obtain. The issue isn’t the filibuster. The issue is the independence of the Senate and of the judiciary. The question is whether we have 3 branches of government, or only one. Cass Sunstein puts it well:
“It may be granted that the Senate ought generally to be deferential to Presidential nominations involving the operation of the executive branch . . . The case is quite different, however, when the President is appointing members of a third branch. The judiciary is supposed to be independent of the President, not allied with him. It hardly needs emphasis that the judiciary is not intended to work under the President. This point is of special importance in light of the fact that many of the Court’s decisions resolve conflicts between Congress and the President. A Presidential monopoly on the appointment of Supreme Court Justices thus threatens to unsettle the constitutional plan of checks and balances.”
Moreover, it isn’t just the senators who are consenting. It is the states.
When 54 senators impose a federal judge on 46 other senators by an “up and down vote,” in a wholly partisan fashion, it is actually 27 states imposing their will on 23 other states. Because Madison lost the fight for proportional representation in the senate, moreover, it is even possible for the 27 states to have less population in total than the 23 states do. In fact, that is presently the case.
So when Bush says the president’s nominees deserve an up and down vote, and given the tyranny in the senate of the Republican majority [which is a minority population-wise], what he is really arguing for is an American monarchy, backed by a King’s Party. King George’s appointees deserve to be appointed because the King appointed them, and the Royal Will must not be subverted. The senators do not have the right to advise or refuse to give consent, in King George’s reading of the constitution.
Karl Rove, Bush’s campaign adviser, has by virtue of highly efficient organization of a very large all-American faction, i.e. the Republican Party (of which the Founding Fathers would not have approved) negated the Republic that James Madison bequeathed us and refuted Madison’s optimism that democracy could survive in large states as opposed to city-states.
Madison became convinced by David Hume’s argument that a large country could have a democratic government because its various local factions could never sufficiently unite to impose a tyranny of the majority: “the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest.”
What KarlRoveWorld has done to the contemporary United States is to undermine Hume’s argument concerning “the falsehood of the common opinion, that no large state, such as France or Great Britain, could ever be modelled into a commonwealth, but that such a form of government can only take place in a city or small territory.” The fear was that such a big country was so unwieldy that there would be a tendency for a central authoritarian ruler to emerge.
Madison was convinced by Hume that a federal government erected over a number of state governments, with a separation of powers, would be so beset by small diverse factions that no one could hope to impose its will on the entire country. So a country’s very bigness could work, in a Madisonian system, to prevent a tyranny of the majority.
Madison in Federalist Papers #10 made his terror of the demagogic tyranny of a “democratic” majority quite plain:
“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community . . . From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”
So simple majority rule would inevitably sacrifice the interests of the weaker party (even of the party with just 49 percent). How to avoid this tyranny of the majority?
Madison explains that a large representative republic could avoid the regimented, despotic majority that might emerge in a small, pure democracy:
“Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, — is enjoyed by the Union over the States composing it.”
Sorry, Jim. It is over.
The two-party system was itself a big step away from the Hume/Madison vision. But with with the regimentation of the parties made possible on a nation-wide basis by new media and new political techniques, and with the subordination of the judiciary to political party considerations, it has proved possible for the Republican Party to capture all three branches of the Federal government.
In essence, the “large” and diverse Republic of the United States with many unsubdueable factions is being reduced to being no different from the small and regimented demagogic “democracies” that Madison feared, dominated by a disciplined, majority faction.
In other words, the United States of America is on the verge of looking an awfully lot like Algeria did in fall of 1991, when the Islamic Salvation Front was poised to exercise a tyranny of the majority in that country.
Senator Joe Biden of Delaware made the most eloquent and concise case against a tyranny of the majority on Hardball the other night.
MATTHEWS: Welcome back to HARDBALL.
This afternoon, Senate Majority leader Bill Frist offered Democrats 100 hours of debate on President Bush`s judicial nominees, including those future nominees for the Supreme Court, if they agreed on an up-and-down vote on each nominee.
Democrats have so far not agreed to this proposal. And earlier today, I asked Democratic Senator Joe Biden of the Judiciary Committee what he makes of the offer.
SEN. JOSEPH BIDEN (D), DELAWARE: It`s ridiculous.
Look, this whole thing underscores they don`t understand the Senate. Up until 1947, there wasn`t — you needed a unanimous consent. From the time of the Constitution to 1947, you needed unanimous consent in order to get a judge through. They changed the rule in 1917 to say you could have – - three-fifths of the senators could vote to cut off debate on legislation, but they said but not for nominees, because the founders never intended that.
This is all about the independence of the judiciary. When you go to the point where you can have 51 senators make a decision on every single — imagine if that rule had been in place when Roosevelt tried to pack the court. What would have happened?
MATTHEWS: He would have done it.
BIDEN: You`re darn right he would have done it. This is time for a couple people of little — as Hamilton said, a moral rectitude to stand up in the Senate and understand the institution. This is not the House of Representatives, as noble as it is.
It was intended to be a totally different institution. They`re about to make this a parliament. They`re about to make this the president, the prime minister. And these guys on his side act as if they work for him. They are independent equals . . .
MATTHEWS: How about the president getting involved? He`s not a member of the legislature.
BIDEN: Well, the president getting involved, he has a right to, but it crosses, it trenches upon the powers of separation.
What everybody kind of forgets is, there was a specific reason why they said, let the Senate dispose of all nominees. The president can propose. The Senate disposes. During those debates on the Constitution, there was no one single time where more than, I think, three votes for allowing the president even in on the deal. The only reason it got to the end was, this is about, look, this is not about equality.
This is about every state, every state having the same power as every other state. If you go by majority vote up there, what people don`t realize is, there are 54 Republican senators. We 46 Democrats represent more of people in America than the 54 of them. You want to do this by majority rule, popular will? That`s not what the Senate is about.
MATTHEWS: So you`re against this proposal of 100 hours?
BIDEN: Absolutely, positively.
MATTHEWS: And you answer is — why are you against 100 hours? Isn`t that enough to debate?
BIDEN: I`m against the 100 hours because it is not enough for debate. If the Senate wants to block extreme — even if they`re not extreme. If 40 senators want to block anybody for nomination, they have the right to do that. And the reason they have the right to do that, it`s the one bulwark against pure majoritarianism . . .
BIDEN: In their heart, they know this is not the thing to do. This is a fundamental change in our constitutional system that exceeds the issue of judges. And it is dangerous. We are not a parliament. We were never intended to be. The states were intended to be equal. This will change that dynamic, not just for judges, but across the board.
MATTHEWS: Where is this coming from? Is it coming from the interest groups, from the Republicans in the Senate, this push to get rid of the filibuster, this — what you call this strong effort, or is it coming from the White House?
BIDEN: I think it`s coming from the White House. I don`t know. The honest answer is, I don`t know.
But I think it`s coming from, it appears, from a distance. Just the plain old politics in me says that the Faustian bargain made with the Christian right — and not all Christians are right and not all right Christians are Republicans . . .
MATTHEWS: Is this a preliminary to the fight over the Supreme Court if Rehnquist steps down?
BIDEN: Absolutely. Absolutely, positively, it is. And, again, you`re talking about, read what they are saying. Read what these guys write. I remember being on your show three years ago. And we talked about the neoconservatives on foreign policy.
BIDEN: Bright, honorable, patriotic people. And I said they`re talking about leveraging power. You had read what they wrote, but everybody else kind of wrote to me and said, you`re kidding. These guys don`t mean that.
Well, guess what? Read what the scholars on the right are writing. They want to change the Constitution.
MATTHEWS: OK, the tough question for you. When this is all over, the people will still say, not just conservatives, it seems to me that the president of the United States goes and picks a person he wants to see, an appellate court judge, a federal court judge. You guys on the Hill take it upon yourself, the right, to say, not only will we not approve him. We won`t bother doing anything with him. We will just sit on that nomination.
And you believe that`s the constitutional right of the United States Senate, to do that?
BIDEN: Absolutely; 24 Supreme Court justices were rejected; 14 didn`t get a vote. Hear me? Fourteen never even got a vote.
Guess who led the filibuster against Abe Fortas and defeated him by a filibuster? An honorable Republican named Griffin who became the minority leader from the state of Michigan. Look who stood up to Roosevelt. It was Democrats in the Senate who stood up and said, whoa.
This idea that the president gets, is entitled to who he wants on the court is the most bogus argument in American, modern American history. It was never, never, never intended that. The reason why the founders said the president would [propose]– and the Senate should dispose is — was, we — all senators couldn`t come together on a single person. A single man can pick a single person more easily. But then it`s up to the senators to dispose of whether or not that person is the right person.
And this is just a bogus notion. And this president is not — look, 215 people he sent us, we passed through 205, and we are being obstructionists?
MATTHEWS: OK. Senator Joe Biden, thank you, sir.