Next time somebody tells you they don’t want to give an inch to the other side in a negotiation or litigation, it might help to suggest to them that they might want to be more practical than our Congress. You probably don’t risk having an argument if your friend or client happens to be from the opposite political party as you. The one thing that most Americans seem able to agree on, no matter what their political persuasion, is that they hate Congress.
In the latest example of Congress’s ineptitude, we saw this week the spectacle of Senate Democrats deciding to change the rules of that body by a simple majority vote in the middle of a session, something that had never before been done in history; a move that has infuriated the other side and that invites retaliation in the future. How did we get to that point?
Last June, President Obama submitted the names of three appointees to the D.C. Circuit Court of Appeals, probably the federal judiciary’s most powerful court after the Supreme Court. Submitting three names at once could have been seen as an offer to negotiate. Perhaps the Democrats would have settled for having one or two of those appointees blocked. Instead the Republican Senate minority blocked all three. At that point there was no more half a loaf that either side could accept in this battle. It was going to be all three judges or nothing. Republicans might have figured they could get away with blocking all three because the Democrats’ only option was to set the dangerous precedent of blowing up Senate rules and tradition to get these nominees confirmed–the so-called “nuclear” option. And Democrats must have figured they had been pushed so far that they had no choice but to accept the costs and risks of exercising that option.
Politics is supposed to represent the art of the possible; it is supposed to encourage compromise. But at times in history, one or both factions in government instead see their perpetual ideological struggle as a matter of principle that does not allow for compromise. They would rather risk getting nothing than settle for half a loaf. We appear to be living at one of those times in our history.
At this point, the consequences of going nuclear are hard to predict. In the long run, the result might be judged a clear victory for one side or the other. The limitation or elimination of the filibuster might turn out to represent a valuable reform. Maybe this change will even encourage Americans to like Congress a little more. But at least in the short run, there can be no doubt that the refusal to work out a negotiated resolution of the dispute over presidential appointments has caused serious strains in the relationship between the two political parties, and has resulted in an “all or nothing” approach to governing that probably could have been avoided. Even the most ardent proponents of the Democrats’ decision to drop the nuclear bomb recognize that they have destroyed a tool that they might wish they still had at their disposal the next time they find themselves in the minority.
For parties involved in perhaps less momentous conflicts, ask yourselves if this conflict is really a matter of principle. Is it really a power struggle that you must win or lose? Are you willing to risk total failure? Or can your goals be better realized through an agreement with the other side that promises practical benefits and does not risk destroying a relationship that may be useful or necessary in the future?