Why Tell When You Can Show? Architecture stories in newspapers never have enough pictures, presumably because architecture critics, overestimating their powers of description, don't want to give up their precious inches even if that would provide a vastly more informative experience for readers. Which tells you more about Rem Koolhaas' new Casa de Musica in Oporto, Portugal: a) the NYT's straightforward photo essay--available here with commentary by the Times' Nicolai Ouroussoff--or b) Ourousoff's strenuous attempts in the Times print edition to describe the building:
[T]hese rooms evoke pieces of the city that have broken off and embedded themselves in the building's skin. Like the characters and objects swept up by the tornado in "The Wizard of Oz," they bring to mind the psychological and emotional residue spinning around in your head, the scattered fragments of memory that shade experience.
Anti-Nuclear Non-Activism:New Yorker'sRick Hertzberg may be onto something in his recent analysis of the fight over ending filibusters of judicial nominations (the so-called GOP "nuclear option). As a loyal Democrat, Hertzberg is supposed to oppose the Senate Republicans' current anti-filibuster plan (the so-called "nuclear option"). But as a longtime constitutional reformer, Hertzberg is himself an anti-filibusterist, recognizing that the Constitution--which doesn't mention filibusters--already makes it way too difficult for the government to pass laws desired by a majority. Think about it: An identical bill has to pass two different legislatures, with differing terms, and then be approved by a President who may or may not be in the majority party. Isn't that difficult enough? Why add an extra, non-constitutional rule that makes it even harder to get anything done?
With the filibuster in place, we've built a reliable stalemate machine, allowing our politicians to stage the peculiarly American Kabuki in which the governing party pretends to try to pass an extreme, base-pleasing program while blaming the non-governing opposition for its inevitable failure to become law. Wouldn't it would be healthier to just let a Congressional majority pass its program and be judged on the results? Hertzberg argues:
Absent Senate filibusters, the anti-lynching bills of 1922, 1935, and 1938 would have become law, bringing federal force to bear against racist violence and possibly allowing the civil-rights movement to achieve its victories decades earlier; direct election of the President would have replaced the electoral college in time for the 1972 election; and nearly all Americans would now be covered by a program of national health insurance.
Does Hertzberg then support the GOP's filibuster-busting strategy? No--judicial nominations are different, he claims, because a "piece of legislation can be repealed or amended after the next election. A judge is there for life."
Actually, I don't think Hertzberg takes his argument far enough. There are two other reasons judicial nominations may be different, quite apart from federal judges' life tenure.
1) In the post-Warren era, judges don't just have tenure, they have almost uncheckable anti-democratic power. The constitution has been durably politicized in a way the Framers didn't anticipate. Practically every legislative issue can be--and is--phrased in constitutional terms (e.g., as a case of "rights"). Activist Democratic judges would start by supervising the fine points of democratically-passed abortion laws, trimester-by-trimester, and take off from there. Activist Republicans would overturn laws approved by the elected Congress when they don't sufficiently affect interstate commerce. The only hope, given these dueling tribes of activists, is that in the Senate's confirmation deliberations each faction will cancel out the extremes of the other, Bork-style, resulting in either the confirmation of a) a principled non-activist or b) a mushy middle-of-the-road consensus candidate. The filibuster can force such a compromise.
2) And you need the filibuster to force such a compromise. When the the Senate votes on ordinary legislation, a President usually has to moderate his proposals to please the various factions within his own party even if (or, rather, especially if) that party is the majority party. President Bush's immigration plan has run into opposition from his party's right wing, for example, while his Social Security plan makes many Republican moderates queasy. Neither plan would make it through the Republican Senate intact even if filibusters were outlawed. But when it comes to Supreme Court nominations, the lingering tradition--however misguided--of deference to the president's selection makes radical choices likely to command majority party support when, as now, the president's party controls the Senate. The only way to force a consensus candidate, in that case, is to give the minority party an effective veto by way of the filibuster. The "on/off" quality of judicial votes, cited by GOP Sen. Grassley as a reason to exclude judicial nominations from the general rule permitting filibusters, is actually a good reason to restrict the filibuster to only judicial confirmations.
Forcing a compromise nominee isn't a very satisfying solution. An unprincipled go-with-the-flow O'Connor/Kennedy centrist--Type (b)--is much more likely to emerge from a post-filibuster negotiation than a principled nonactivist of Type (a), if the latter even exists. And a Type (b)judge is likely to be more "liberal" than "conservative" to the extent that the mainstream bar has embraced questionable post-Warren activist precedents such as Roe v. Wade. But unless we're going to somehow guarantee that no party ever gets to pick a solid Court majority, it's the best solution I can think of. 2:10 A.M. link