Mark Schmitt

Foundations and Scrutiny

I don't much care for its tone, and I'm not willing to accept that campaign finance reform was "an immense scam," but as for the conclusions of this essay (In a World of Bloggers, Foundations Can Expect More Scrutiny)by William Schambra of the Hudson Institute and formerly the conservative Bradley Foundation,  it's hard for me to fundamentally disagree.

Schambra argues that bloggers such as Ryan Sager (who led the recent charge against the Pew Charitable Trusts) represent a "new network" that will keep organized philanthropy on its toes:

Foundations may insist [their policy] recommendations spring from pure rationality and objectivity. But the new network has another name for them: liberalism.

If this seems harsh, conservative grant makers can only say, "Welcome to our world."

Harsh? What's harsh about that? Liberalism is my name for it too. It's an honorable name.

Schambra continues,

Some will quail before this new media world, complaining that now is hardly the moment for heightened criticism of foundations, with Congress poking around. But it is precisely this paranoia about negative reporting -- this priggish reluctance to air differences and difficulties before outsiders -- that prompts Congress and the public to suspect foundations have something to hide. Awareness that they are being scrutinized tends to keep large organizations nimble, alert, and alive. Why should philanthropy be any different?...

Foundations that want to become active in public policy should not be discouraged from doing so. But it is important for board and staff members alike to take a long, searching, honest look at the political assumptions the foundation inevitably carries into the public fray. Those assumptions will quickly be brought to light, by others who do not share them. It will no longer be credible to profess innocence of political intent in the name of objectivity. Foundations may find the new world of press and public policy to be messier, louder, and less genteel. But we will all find it to be more honest, more balanced, and ultimately, more informative.

The major mainstream foundations -- Ford, Carnegie, Rockefeller, Mott, and half a dozen others -- are all products of the postwar "liberal consensus," when it was possible to believe, as President Kennedy said, "What is at stake ...today is not some grand warfare of rival ideologies which will sweep the country with passion, but the practical management of a modern economy. What we need is not labels and cliches but more basic discussion of the sophisticated and technical questions." When foundations adopt the tone that they are engaging in rational and objective research about problems and solutions, they are not covering up for some ideological bias, they are speaking from this most basic founding principle.

And yet, that principle is dead. The Kennedy-era consensus is gone. And foundations need to understand that the very idea that "rationality and objectivity" should shape public policy, that we should test programs, find best practices, and government should support those that work, is now itself a contested idea (along with evolution and climate change), territory to be won back in a "grand warfare of rival ideologies." Foundations that want to return to the world in which they were created will have to fight for it -- and that means admitting that they are taking sides, and operating, without shame, with politics (not partisanship, but politics in the broad sense) and ideology in mind.

They should be more involved in public policy, and that means not just advocating increases in government funding for services they are interested in, but fighting for a tax and budget structure adequate to provide that funding.

There are plenty of exceptions. The work on campaign finance reform that Schambra cites was not liberal, in that many liberals hate the law and its most prominent backer, Senator McCain, is a solid conservative, a worthy heir to Senator Goldwater's seat. Strategies to help low-income families save and accumulate assets, as developed by some of my colleagues, similarly have supporters from the far right to the far left, and diverse foundation support as well. And there is plenty of research and analysis that foundations fund that truly has no ideological context, or that cuts across ideological or party lines.

But in many, many instances, the kinds of policies that foundations want to further -- reducing global warming, increasing public supports for low-income families, fixing health care, making the tax code fairer, fixing public school funding, increasing voter participation, etc. -- are going to be treated as political in a way they never were -- "messier, louder, and less genteel," as Schambra puts it. And he's right that it can be healthier and more balanced in some ways, just as the world of the "liberal consensus" papered over a lot of real differences.

A Tough Question for George Allen

All the attention in the Bolton hearings has focused on the "conscience caucus" of Voinovich, Chafee, Hagel and Murkowski, and on Lugar. But this is also a chance to see some other senators in action, like Norm Coleman of Minnesota and George Allen of Virginia, who has been identified by National Journal as the top pick for the 2008 Republican presidential nomination.

Neither one of these characters rises to even the middle tier of mediocrity, but there's something fascinating about Allen: He does not speak English. I mean that almost literally, in that he does not construct sentences made up of commonplace English words. Rather, he speaks entirely in a patois constructed of football metaphors. Absolutely everything is second down or third down, or five yards or ten yards or a Hail Mary. If you were unfamiliar with the basic jargon of American football (as many people are), his every word would be incomprehensible. His official photo on his web site has him holding a football. Try going through a day using a football (or baseball or basketball) metaphor for every conversation, and you get a sense of what it would be like to be George Allen.

Now I know that his father, who had the same name, was a football coach, best known for letting Richard Nixon call a play for the Redskins, and for a management philosophy called "The future is now," sort of a prototype for the Bush tax policy. I sort of assumed that the Senator played or coached in the NFL himself, but I got curious about it today. Did he? No. He played a little bit at UVA, apparently. (Of course, I worked for a guy who had a couple of championship rings and was in the Hall of Fame, and you were allowed maybe, at most, one glancing basketball reference in a speech, preferably none.)

In the course of looking this up, I came across an interview with Allen for nfl.com that includes a question from one Adam Schefter so merciless and piercing that that this guy deserves a spot in the White House press corps:

Schefter: Is there any family as distinguished as yours?

(I noticed late in writing this that Dana Millbank has already covered the Allen football-ese in February.)

No Way Out

Salon has a good "Everything You Always Wanted to Know About the Nuclear Option" article for those who don't have the time or patience to read Parts I-XV of KagroX's "Notes on the Nuclear Option" at The Next Hurrah.

It's well done, but I think on one point, it's a little too sanguine about the situation Senator Frist has placed himself in:

So with the stars lined up like this, maybe Frist wins either way. If he calls for a vote on the nuclear option and wins, he will have brought home a victory for the religious right. If he calls for a vote and loses, he will have gone down fighting. And God knows, the religious right loves a martyr.

I don't think it's that easy. It seems pretty likely that Frist does not have the votes for the Nuclear Option. If he did, he would have called for the vote this week. (And I'm guessing that he's down one more vote now, because Senator Chaffee will claim that by voting with Voinovich to let the Bolton nomination go to the floor without a recommendation, he gets credit for voting for Bolton and therefore should be free to vote his own mind on the Nuke option. That kind of calculus is what's going on when you see a Republican senator "deliberating.")

If Frist calls the vote and loses, at the very least he cannot continue to function as Republican leader of the Senate. He will have forced a number of Senators to vote against their own instincts and institutional values. Some of those Senators might be willing to vote for the option if it moves their judges forward and strengthens their president, but they're not willing to vote for it and lose. They'll be angry. And then there will be the Republicans who vote against it: they will certainly face calls, stirred up by Frist himself, for retribution -- primary challenges, removal from committees, etc. To function as leader, Frist will have to reassure them that he will discourage retribution. But if he does so, he will lose the support of the religious right that he stirred up. He's stuck.

Can he call the vote, lose, and immediately step down as majority leader in favor of Senator Mitch McConnell? I think that's the only option, but that makes you a disgraced former party leader, not a front-runner for the 2008 Republican nomination.

I'm grateful every day that I'm not Bill Frist, but today more than usual.

Peter Ferrara: Too Busy Being a Hack

The thing that has baffled me about the Bush debacle on Social Security is the sheer incompetence of the thing. They had twenty years in which they seem to have known exactly what they wanted to do. They had time, they had money. Couldn't anyone do the math? Didn't anyone bother to figure out how the transition costs were supposed to work, or come up with a better method to make the accounts work than the "clawback" of guaranteed benefits?

One theory I've had is that conservatives have a problem that's the opposite of the problem liberals have. We (liberals) like to design government programs. We collect our MPAs and our MPPs from the Kennedy school or the Woodrow Wilson School, and we learn all about design constraints and moral hazard and so forth. (I actually never did any of that, but I learned at the feet of some masters.) And as good as we are at designing programs when given the opportunity, we're generally pretty weak at developing big ideas and ideology to get us into power so that we can again have that opportunity.

Conservatives, I assumed, were the opposite. They don't like government and as a result, they aren't interested in learning how to design its programs. They're good at the ideology, big ideas and message, but when their message wins them the opportunity to actually design or redesign a program, they're in over their heads.

Obviously a generalization, but I think that's part of it.

But from Franklin Foer's article on Jack Abramoff and the corruption of Washington think tanks, I learn that there might be another answer. Consider the case of Peter Ferrara, the "notoriously unkempt wonk" who wrote a paper on privatizing Social Security at Harvard Law School and supposedly has spent the twenty years since refining and promoting the idea. Only he wasn't. What he was doing was Abramoff's errands:

As money-for-influence scandals unwind, pundits usually invoke Deep Throat's famous aphorism, "Follow the money." But, to understand Abramoff's success, you must follow the byline. Seemingly every time Abramoff acquired a client, Norquist or ATR's chief counsel, Peter Ferrara, would write a Washington Times column making that client's case. In the mid-'90s, Channel One, a TV network beamed into schools, paid Abramoff several hundred thousand dollars. Meanwhile, Norquist argued, "Channel One has come up with a brilliant free-market innovation that can translate into lower taxes." In 1998, the Puerto Rican statehood movement shelled out $400,000 for Abramoff's services. That year, Ferrara made the conservative case for that client's cause: "Moreover, unlike the United States, Puerto Rico has school vouchers and school prayer. Polls indicate it would be another bastion for the religious right." After Abramoff reportedly began working with the Malaysian government, a Ferrara op-ed argued, "The U.S. should reaffirm its relations with Malaysia and collaborate closely with it in the global war against terror."

The Republican scandals and the Republican policy failures, it turns out, are intimately related in more ways than you might realize.

Progressive Price Indexing is Not Means-Testing -- It's Arbitrary

A journalist recently told me that he was being encouraged by conservatives not to use the term "means-testing" to describe Bush's latest Social Security gambit. The argument was that progressive price indexing does not introduce means-testing to Social Security, since the system is already loosely progressive; it just makes it a little more progressive.

I argued at the time that the term means-testing is appropriate for any plan that makes Social Security a manifestly bad deal for a significant part of the population, as progressive price indexing would do. But in thinking about it further, and looking at some new information, I decided the conservatives were right the first time: It's not means-testing. It's not means-testing because it doesn't actually have anything to do with the question of whether the retiree actually has the "means" to live with reduced Social Security benefits. Because it it reduces benefits for many retirees regardless of their actual financial situation in retirement, it's more like a plan of arbitrary reductions.

For a number of examples of how that would particularly hurt some poor seniors, see this new white paper from the Center on Budget and Policy Priorities. A particularly compelling example is a divorced woman who had spent most of her life out of the workforce, but whose ex-husband had been a high earner. On retirement, under the current system, she gets benefits based on her ex-husband's earnings history, which earns her higher benefits than she would get based on her own. That's a very important protection for a very vulnerable group. But because the ex- was a high-earner before running off with his secretary, those benefits will now be reduced, by about 25%. The same problem would affect widows.

But it's more general than that. One worker might have a modest income averaging about $50,000 throughout his lifetime, and yet because of the costs of his kids' college, an expensive health condition, a few years of unemployment, or a bankrupted pension plan, might never manage to accumulate much savings for retirement. He'll have his benefits cut. Another worker might never earn more than $30,000, but thanks to an old-fashioned defined benefit pension plan, or an inheritance, or selling a house for ten times what he paid for it, is in relatively good shape for retirement. But he'll get close to the full benefit.

That's not progressive. It's arbitrary.

Actually adjusting benefits based on a retirees' real needs and means could be a good idea -- and I say that as someone very wary of jeopardizing the universality of the program. One step in that direction was taken in 1993, when the Clinton budget deal made 85% of Social Security benefits taxable for individuals with incomes over $25,000 or couples with income over $32,000 in retirement. Now that's progressive, and that's actually related to means. How many of the Republicans who are excoriating Democrats for not embracing Bush's plan voted for it? I'll let you guess.

"Our Kids Are Not Doomed" -- Thanks to Government!

It's always easier to get an advance on a polemic of one sort or another, so I've always admired Stephanie Coontz, a scholar of the history of the family, for a pair of books, The Way We Never Were, and The Way We Really Are, which soberly debunked both the nostalgia for family life of the 1950s and the alarmism about families in the 1990s.

Yesterday in the LA Times, Coontz made the point that, for all the alarmism about cultural changes affecting the family, children and young people are actually doing much better since the beginning of the 1990s, by almost every measure. She is mostly responding to the argument that social trends such as the rising number of unmarried-parent households is harmful to children.

All her points are right, but I think she left out one element of the story: government. I remembered that there used to be a way to respond to things you read in the paper other than blog about them, so I wrote a letter to the LA Times:

To the Editor,

Yes, children and young people in America are doing better today than in the 1980s, by almost every measure, as Stephanie Coontz pointed out in her May 9 op-ed. Much of the improvement, as she argues, has to do with positive changes in the culture, such as fathers playing a greater personal and financial role in their children's lives, and an actual decline in teen pregnancy.

Coontz neglected the role of government in this improvement. Beginning about twenty years ago, when Arizona governor Bruce Babbitt devoted his entire State of the State address to children's issues -- and was mocked for doing so -- politicians of both parties undertook a quiet but revolutionary effort to improve the well-being of children. For example, Coontz says, "more divorced dads paid child support," but part of the story is that the federal government dramatically improved child support enforcement. Expansions of Medicaid, the Earned Income Tax Credit, and increases in child care spending all helped families adjust to the changes in the family and in the labor force.

In 1999, the Congressional Budget Office examined the changes in federal spending for working families with children from 1985 to 1999. In 1985, adjusted for inflation and population change, federal spending on programs for children would have been $5.6 billion. In 1999, it was $51.6 billion. The improvements Coontz notes cannot be separated from this change.

Coontz's data is not just a rebuttal to the demagogues who spread fear that cultural trends such as single-parent families will hurt children. It is also a powerful reminder that government can be a force for real improvement.

Sincerely,
Mark Schmitt

p.s.: The CBO study I refer to in this letter is found at http://cbo.gov/showdoc.cfm?index=849&sequence=0

Some readers may recognize that the argument in this letter from my article in The American Prospect online last summer: Kid's Aren't Us.

Principles for Redistricting

In my recent post on the importance of redistricting, I think I fudged an important distinction. By focusing on the difficulty of representing sprawling, politically drawn districts that take in just part of a community and then add far-flung counties, I implied that I think such values as "compactness" of the district, or following the boundaries of existing jurisdictions or communities, should be the highest priority in redistricting reform.

Several readers asked for more information about the options for redistricting reform, so I'll take up that invitation and mention some of the basic principles or tradeoffs in redistricting reform, especially as they apply to reform proposals under consideration in California, Ohio, and Florida.

All the reform proposals seek to make redistricting nonpartisan, usually by establishing an independent commission, such as in Iowa. The nonpartisan commission is an alternative to partisan districting, which is the situation in both Ohio and Florida, where Republicans controlled both houses of the legislature and the governorship during the last redistricting cycle, as well as California, where Democrats dominated, and the better-known cases of Texas and Georgia where Republicans took full control after the normal cycle and reopened the process to push through a new map. Purely partisan redistricting is less common than bi-partisan redistricting, which is normally the process when one party does not control the whole legislature and statehouse. Bipartisan redistricting, such as in New York, tends to lead to a mutual incumbent-protection scheme, whereas partisan redistricting can sometimes make a state seem more competitive, at least for a time.

The nonpartisan commissions proposed in California, Ohio and Florida must be given some guidance. In the case of California's current proposal, priority would be given to the rule that districts be compact and contiguous, and follow existing jurisdictional boundares. Competitiveness would be a secondary criterion. Florida may have a ballot initiative that creates a nonpartisan commission, and a separate initiative to require the districts thus drawn to be compact and contiguous.

Ohio reformers are taking a different approach. There, the priority is on competition, and the system will be a brilliant experiment: Anyone at all can design and submit a map. Each proposal will then be given a point score through a computerized system, with the highest priority placed on competitiveness, though points can also be awarded for compactness or subtracted for lack thereof. The commission can choose from among the three highest-scoring plans. (The addition of the commission is apparently a compromise from an older proposal that would have had a computer do the whole thing without human discretion.)

At a time when congressional reelection rates have returned to the 98% level and only a handful of races are competitive, when the same is true in most state legislatures, it would be a pity to go through the exercise of redistricting reform and not see a significant increase in competitiveness. That's entirely apart from party preference; it's simply the fact that much of what's wrong with politics -- from personal corruption to policies that ignore public preferences -- thrive in an environment of lack of competition. Putting the priority on compactness of the district, or following existing lines, might make some districts more competitive, but in many other cases might make them much less competitive.

Further, I used two examples of split-up communities in my previous post: Austin, Texas and Jacksonville, Florida. Both of those are mid-size cities that would fit almost completely in a single congressional district, and should. But they are rare cases. Any rural district is likely to sprawl across a wide area that has no natural sense of community, just as any district within a city like New York is likely to take in a collection of neighborhoods that may have little in common or little sense of community. That's particularly true if all districts are required to be the same size.

That would tend to argue for a higher priority on competitiveness as a goal. But simply constructing districts that have a relatively comparable number of Democrats and Republicans doesn't necessarily improve the quality of representation. If the Ohio reform passes, probably many districts will be constructed in Ohio that link heavily Democratic urban areas with distant Republican suburbs. Will the winner be the person who can most faithfully represent the broad majority of voters in that district? Maybe. Or will the outcome will hinge on mobilization, on whether the Democratic candidate is more successful at boosting turnout in the urban areas, or the Republican more successful at mobilizing white suburbans: a replay of the Ohio presidential campaign strategy of 2004? If so, assuming the winner achieves a reasonable majority, he or she is not likely to feel any more obligation to represent the views of, or win over, the 47% minority than Tom DeLay feels to a duty to represent the smaller number of people in his district who would never vote for him. And after that first victory, the other advantages of incumbency kick in, principally the ability to raise enough money to scare away any challenger, so the district may not be very competive for long.

There are two kinds of "competitiveness." One is a kind of "natural" competitiveness that one finds when people are genuinely up for grabs as congressional voters. Usually this kind of competitiveness is found at moments of transition. When I first started following congressional races closely, in 1988 or so, I remember that a good number of the competitve seats were in the Carolinas. But these were districts that had been voting for Reagan, and yet still sent Democrats to Washington. They were becoming Republican districts, and their apparent "competitiveness" reflected a deadlock between the incumbency advantages and moderation of their Democratic rep, and the ideological claims of the Republican challenger. It sometimes took a few tries before the Republican broke through, and the Republican takeover in 1994 was really the sound of the last dominoes falling. Today and in the years ahead, the competitive districts will be those historically Republican Northeast and Midwest districts that have been voting for Democrats for President. For now, Republicans like Chris Shays, Nancy Johnson and Mark Kirk hold on, either they will step aside or they will eventually lose, and at that point, the districts will cease to seem "competitive" but will become the Democratic districts they are meant to be, and the "moderate Republican" will become extinct.

It seems to me that some of the "competitiveness" that these reform efforts are trying to restore is trying to artificially recreate circumstances that existed only at a time when party and ideology were not fully aligned. In the 1950s, James McGregor Burns wrote of four parties -- each party having a presidential and congressional wing, with the Democrats' presidential wing liberal and its congressional wing more conservative; the Republicans more or less the opposite. That four-way dynamic, while it had many ugly outcomes such as the denial for decades of civil rights, nonetheless created some possibilities for movement and uncertainty that are less likely in an era when there are only two parties.

In the current climate, competitiveness in many districts might be found in primaries, and I don't really object to that. In some cases, first-past-the-post primaries may lead to polarization, as more extreme candidates have an advantage, but I doubt that's always the case. The bigger problem with relying on primaries for competition is that it is very rare and difficult to wage a primary challenge against an incumbent.

All these tradeoffs could be avoided by adopting the most compelling of the reforms in the proportional representation/instant-runoff voting universe: Multi-member districts. (See www.fairvote.org for background on PR, IRV, choice voting, etc.) A single district of, say, 2 million residents might include all of Houston, with three representatives elected at large, through a system of choice or ranked voting. There would likely be competition for all three seats, perhaps two Democrats and one Republican elected, and almost everyone in the city would be in some sense spoken for.

Unfortunately, these reforms, at least at the congressional level, are not yet within the realm of the possible. I'm not one of those who believes that anything short of eliminating winner-take-all elections is basically worthless. The redistricting reforms in California, Ohio and Florida, if they pass, will be great experiments and could bring real improvement in the quality of elections and representation.

More on Janice Rogers Brown

Kieran Healy gives a good close reading to another Janice Rogers Brown speech, this one delivered to the Federalist Society at around the same time as the speech I cited last night.

A couple of disjointed further comments, or points to emphasize:

First, I'm struck again that both these speeches are explicit statements about the nominee's approach to her work as a judge, and the reasons she came to the view that a judge should not be afraid to overturn laws that he or she believes violate not the Constitution, but a separate "natural rights" view of economic rights. These speeches are recent and specific, significantly more relevant to her position as a judge than was Judge Robert Bork's 1971 Indiana Law Journal article that sank his nomination 16 years later.

Second, this is another case where the right is hiding behind the cloak of religion, and yet this judge appears, on the basis of these two speeches, to be about as secular as one would expect of someone who cites Ayn Rand and Chris Rock as her legal authorities. While she speaks of "natural law" and "natural rights," and attacks the Enlightenment, there is startlingly none of the traditional conservatism that one associates with that line of argument in, say, Alisdair MacIntyre, who see (roughly) the Enlightenment as the birth of rights-based liberalism and call for a return to the moral certainties of Aquinas and earlier. Natural law, to Brown, means absolute property rights and nothing else!

Third, if my old friend Steve Calabresi really believes that African-Americans are going to embrace this cold-blooded fringe philosophy simply because it is delivered by someone who is African-American and who quotes Chris Rock, I have to say, that's as nasty a bit of racial condescension as I've heard in a long time. I look forward to finding out.

The more I read about this nominee, the more I say, please, please, let's stop talking about the Nuclear Option and start talking about this judge!

The Fortas Filibuster and Janice Rogers Brown

One of the factual questions behind the debate on the Nuclear Option is whether a filibuster of a judicial nominee is unprecedented. Republicans (at the moment) argue that it is; Democrats have several examples to show that it is not, the most notable being the filibuster of Justice Abe Fortas's nomination to be chief justice in 1968. David Greenberg explains the Fortas case in today's LA Times.

There are several rebuttals to the Fortas example, most of them along the lines of, he was just a really, really bad guy. (A real cheapening of a brilliant career that came to a pathetic end.) But the most damning rebuttal is that Fortas, in fact, quite probably did not have the support of a majority. So, Republicans say, even though a filibuster was organized against him and Fortas' opponents defeated a cloture vote, they didn't really have to and had it gone to a vote, Fortas would likely have been defeated. So it doesn't really count as a filibuster, because a minority was not blocking the clear will of a majority.

And that's a good point. In fact, it's such a good point that it bears looking at in relation to the current nominees. I've been reading a lot about Judge Janice Rogers Brown, for example. This article by Stuart Taylor in National Journal is pretty much the main thing you have to read. Stuart Taylor is no liberal, no partisan, so when he asks, "Does Bush really support this nominee?" it's a question worth taking seriously.

To understand Taylor's point that Brown's "radical-libertarian judicial activism" belongs on "the right fringe of the legal-political spectrum," you might read all or part of Brown's speech to the Institute for Justice in 2000. The really crazy stuff, such as her reference to "the Revolutions of 1917 and 1937," starts around page 10. (In case you're not familiar, that would be the morally equivalent October Revolution and the decisions upholding Social Security, minimum wage and the National Labor Relations Act -- "our own socialist revolution.") She describes how she changed her mind about judicial activism, deciding that conservatives who fear judicial activism "have been fixated on the structure's gingerbread trim when we should have been focused on the foundations." The "foundations" of the trend toward "slavery" being legislative decisions by majorities that she would overturn based on "natural rights." Note that her vision of "natural rights" seems to have no moral content but consists exclusively of absolute rights to property in all respects, including, it would seem, a right to be free from all taxes. There is some debate about the degree to which her judicial opinions reflect these views, but who cares: this speech is a personal manifesto, it's a very specific statement of how her judicial philosophy -- not her personal beliefs or her political ideology -- evolved, and there is no reason that the debate about this nominee should not be a debate about that manifesto.

I suspect that if there is extended, open, high-profile debate about this nominee and her manifesto, at the end of the day, just as with Fortas, there might not be 50 votes to endorse these views. I think this might be a case much like the one I described in the post about my own work on a filibuster as a Senate staffer, where the heightened scrutiny of filibuster makes some Senators think twice, and in the end it turns out that the Senators filibustering are not in fact projecting a minority, but a majority.

But it can't happen without the right of unlimited debate. With limited debate, even if it's 100 hours, it's a rubber stamp. The media would assume it's a done deal, the Senators would assume it's a done deal, Barbara Boxer and Russ Feingold would consume a few hours of floor time talking about Brown's views while the other Senators went off to fundraisers, and then they would give up and let it go to a vote. It's exactly what happens on the budget reconciliation bills, where time is limited and filibuster prohibited. The vote coming out is exactly the same as the vote going in.

But the filibuster changes things, especially if the Republicans force a real filibuster and not the old tactic of taking a test vote and pulling the bill/nomination if it doesn't get 60. A filibuster on Brown, or the similarly disturbing Priscilla Owen, would be highly dramatic, uncertain. Senators would stay and listen. They would know that their vote would be noticed. And under those circumstances, some number of those Republicans are not going to want to have their reputations associated forever with someone who doesn't seem to know the difference between FDR and Lenin.

But this goes in the other direction, too. If the Democrats filibuster a nominee who is very conservative but qualified, responsible, and not "fringe," it will be embarassing to the party, and the filibuster itself will collapse, with enough Democrats getting cold feet that they will not have even the 40 votes.

Now, back to Fortas. Would Fortas's opponents have been able to organize their (hypothesized) majority against him without the threat of a filibuster? No, they would not. Fortas started out with apparent majority support; but as the fight went on, Richard Russell of Georgia, the leader of the Southern Democrats, who had supported Fortas in the past, turned against him. LBJ said of the filibuster, " I know [Republican leader Everett Dirksen]. I know the Senate. If they get this thing drug out very long, we're going to get beat. Dirksen will leave us."

(One of the key tools of persuasion during the Fortas filibuster, if I recall correctly from Laura Kalman's great biography of Fortas, was a continuous showing in Strom Thurmond's office of pornographic movies that supposedly were made been legal under Fortas's rulings. Thurmond would invite Senators one by one up to his office to have a look at these films -- but no ladies, of course! (There was only one woman in the Senate at the time.) The vision of Thurmond and his cronies sitting in that dark room watching black and white stag films of the pre-Deep Throat era, over and over again while pretending to be considering a Supreme Court nomination has always been a horrifying vision, but a reminder that there's nothing that much nobler about the Senate of the recent past than today's.)

So let's assume the worst about Fortas -- he was a really, really bad guy and a majority wouldn't have supported him in the end. What would have happened if the Nuclear Option had been in effect in 1968? Quite likely, Fortas would have been confirmed as chief justice, with Russell and Dirksen supporting him. So if you think Fortas was a bad guy, you should support the filibuster, because only the filibuster made it possible to force LBJ to withdraw the nomination.

Here is the problem for the Republicans: They are much better off debating "the Nuclear Option," and the idea of filibustering judges in the abstract than talking about any of these particular judges, especially Brown. They do not want to debate these judges in any high-profile way. But they can't keep talking about the Nuclear Option without eventually pulling the trigger. And they can't pull the trigger unless they know they have the votes.

Chekhov's Dictum

This headline

Frist begins to squeeze the trigger

made me think that perhaps someone should introduce Mr. Frist to Anton Chekhov's famous line, "If you bring a gun on the stage, someone has to fire it," or sometimes rendered as, "If you say in the first chapter that there is a rifle hanging on the wall, in the second or third chapter it absolutely must go off. If it's not going to be fired, it shouldn't be hanging there."

I'm not privy to any insider anything, but I'm pretty sure that either they don't have the votes, or they're not sure they have the votes. Either way, they're stuck. For now, it's all bluster while they figure out what to do.