Upper houses at low ebb

By Christopher Caldwell

Financial Times

Published: May 21 2005

Televised around the world this week, the US Senate's confrontation with George Galloway, Respect parliamentarian for Bethnal Green in east London, turned into a national embarrassment for the US. This is a long way from saying that the allegations US authorities are pressing against Mr Galloway are baseless. The case involves documents that list his charity as a recipient of oil credits from Saddam Hussein's Iraq under the United Nations oil-for-food programme.

But the senators were unable to match Mr Galloway's straightforward denials with anything other than legalistic nit-picking. They lost track of testimony they had just heard and were unable to ask tough follow-up questions. They grasped at straws, taking consolation in Mr Galloway's perfectly reasonable reluctance to answer a pointless hypothetical question from Carl Levin, the Democratic senator from Michigan. Mr Levin asked how Mr Galloway would have felt if one of the donors to his charity had circumvented the oil-for-food programme. It was a question pitched to the standards of afternoon television, not to the traditions of what Americans call, sometimes without irony, "the world's greatest deliberative body".

Those Senate traditions look to be in peril, for reasons unrelated to Iraq. The crisis has its roots in the American political system, but is hardly unique to it. Over recent decades, US judges have become more idealistic, activist and intrusive. They have overturned laws, mandated policies and established rights where none existed before - most controversially on abortion. Courts now fulfil many functions historically carried out by legislatures. The US right tends to view this change as an usurpation, the left as a necessary adjustment to the complexities of modern life. But neither side denies it is a fact.

Empowered by the constitution to give "advice and consent" on nominees to the Supreme Court and the federal bench, the Senate is thus in a powerful position, and an impossible one. Since the Senate chooses the republic's real rule-makers, it is a natural scapegoat - particularly for Republicans frustrated that their sweeping victories at the polls in recent decades have not been reflected in similarly sweeping changes in American life.

Senate minorities have always been able to make use of the filibuster - the right of 40 out of 100 senators to stall a vote. But the tactic had never been applied to judicial nominees until Democrats deployed it in the last Congress. With at least one Supreme Court vacancy likely in the next year, Republicans will not allow a system to persist that requires a 60 per cent "supermajority" for their nominations. Democrats will not allow Republicans to remake the country's judicial system unimpeded. As this weekend approached, the Republican majority was steering the chamber towards a final vote on appeals court nominee Priscilla Owen. Democrats were set to filibuster. Republicans were threatening to change the rules to block this tactic. And some Democrats were urging members to use their clout to shut the Senate down.

If this were a simple case of partisan bickering, the only question would be which party stood to gain and which to lose in next year's mid-term elections. An NBC poll this week showed that 51 per cent of Americans disapproved of the job that Congress was doing. Since Republicans now control the Senate, they are more likely to suffer.

But the signs are that the Senate faces an institutional, rather than an ideological, crisis. Two decades ago, the principle in executive-branch nominations was to "let the president have his people". That no such principle now applies has been made obvious by George W. Bush's nomination of John Bolton as ambassador to the UN. The nomination has remained stalled, even as the grounds for stalling it have changed at least twice - from Mr Bolton's alleged hostility to the UN to certain of his decisions about intelligence-gathering to his treatment of underlings. The impending clash over judges makes a vote on Mr Bolton before June unlikely.

There used to be two principles in judicial-branch nominations: to admit any nominee of good qualifications and character, and to protect the separation of powers. Today, partisan interest groups hire private investigators to drum up "character issues" (the National Abortion Rights Action League is reported to be doing this with Mr Bush's nominees) and legislators are eager to claw back authority from the courts (witness last month's Senate intervention in the case of Terri Schiavo, a brain-damaged Florida woman who died after local courts ruled that her food should be withdrawn).

Several factors are commonly adduced to explain the Senate's decline. Dianne Feinstein, the Democratic senator, has long warned of the power of money in senatorial politics, ruing that senators now spend most of their time maintaining their networks of donors. And since last November's election about half the senators - an unprecedented tally - are drawn from the House of Representatives. They have brought to the upper house much of the partisan spirit and contempt for minority views that mark the lower.

Our era has not been particularly kind to upper houses, which fit poorly with the democratic rhetoric now in vogue. Whether because of habits formed by consumerism or because they have been incited by the media, voters are less and less willing to wait for political solutions. They want instant gratification. In this light, the US Senate may be labouring under pressures that are historic, and beyond members' control. This is the view of Jim Jordan, Democratic consultant, who told Associated Press this week that "deal-making and compromise depend to a certain extent on quiet and privacy". Perhaps the Senate is not in crisis because the quality of senators is plummeting. The Senate is in crisis because the virtues that senates traditionally offer - thoroughness, moderation, attentiveness to a country's traditions - are ones that an internet-age electorate only pretends to respect.

The writer is a senior editor at The Weekly Standard