MISPLACED CONSTITUTIONAL THUMOS

Ire is spreading in some quarters about Daschle's request to speak with Bush about confirmations. See here (via Hesiod). And in other quarters, doubts have spread regarding the sincerity of any Democratic offer (because, according to Poliblog, Dems can be presumed not to ever be willing to compromise on abortion).

It's the end of a long day, so I'll just point out one thing that seems obvious to me. Regardless of what the judiciary does, many of the difficulties that are currently part of the nominations process have to do with an invention that was deemed destructive and undesirable by the framers -- and no, I'm not speaking about "judical activism," but political parties. Sure, according to the Federalist, it's good to have the nominations process in one person so we know whom to punish if the judges are not virtuous (with or without impeachment). Aside from the fact that the Federalist may or may not be authoritative on every point (whatever "authoritative"means), I think that our political system presents problems that are not late eighteenth century problems by any stretch of the imagination. In the current context, you have competing "factions" in the Senate and the House, one of which is allied to the President, who proudly runs as the leader of the faction and who raises bucketloads of cash for them. You have a very narrow factional divide in both the country and the legislature. And you have judicial candidates who either ally themselves with positions that are attractive to one faction or another, or who are claimed by one faction or the other. The federal judiciary is a wonderful prize because it promises partisan entrenchment by one of the factions if it can only gain enough votes to prevail in the Senate and win the Presidency as well. And you have popularly elected Senators who probably do not "refine and enlarge the public views" as Federalist #10 thought they would; instead, they reflect the views of their constituency, partly because of changing norms about democratic responsiveness, partly because of the structure of the modern political campaign.

The framers did not face such a political universe, so it is hard to know precisely what norms they would have wanted to guide such a political universe. If in these circumstances Daschle wants to pressure Bush to nominate a consensus candidate (as Hatch did to President Clinton), for the life of me I can't see how that could be a bad thing. Pejman is right on one thing, though, if you change the phrase a bit. He writes:

Only pure partisanship makes this kind of subversion of the constitutional process necessary.

Let me suggest as a substitute:

Only the existence of political parties (+the 17 Amendment) makes this kind of invocation of the political process necessary.

OK, not a perfect line, but you get my point. We now have political parties (again, the framers probably would have called them "factions") that attempt to capture the organs of government. We have Senators who are elected in the same way as members of the House, just in bigger races. If there's any perversion here, it has spread a lot father than to the leadership of the faction you happen not to like.

MORE: See my latest post, above.

MORE: Jim boils down my post pretty nicely. And I should have noted: "thumos" is Greek for "anger." I like that word.