June 01, 2005, 7:58 a.m.
The “Mainstream” Doesn’t Run Through Main Street
Defining the terms…since the Gang of Fourteen wouldn’t.

Opinion is divided about whether, and how badly, Republicans got snookered in the deal struck last week by the so-called “Gang of Fourteen” (seven senators from each party) to halt momentum toward a rule change that would have ended confirmation filibusters and guaranteed each of the president’s judicial nominees an up-or-down vote.

There is, however, consensus on one point: No one knows what on earth is meant by extraordinary circumstances. Yes, the pact and its makers have predictably been swooned over in the mainstream press for saving the senate, and perhaps civilization itself, from the Hobbesian abyss. But what about the truce’s key term?

What do we know about the meaning of this condition? The one that could trigger both the right to filibuster that Democrats have preserved for themselves and the so-called “nuclear option” from which GOP gang members shrank on Monday but — now that crunch time has passed — bravely promise they absolutely might possibly maybe deploy in response? On this, that moderate “maverick,” Senator John McCain (R., Ariz.), and his gaggle of self-styled centrists say only, “Trust us.” Why? “Because we trust each other.”

Well, call me a cynic but I’d like to see just a tad more meat on those bones.

In truth, the centrists may unwittingly have performed a valuable service here. By studiously avoiding the tough calls in their agreement — much as they avoided an accountable gut check by entering into the agreement — they rivet our attention to the language battle.

What are extraordinary circumstances? What renders a nominee so unfit for service that he or she should not even get a vote — in defiance of the senate’s constitutional duty to approve or reject presidential appointees? Well, a tenacious minority of Democratic senators, urged on by deep-pocketed Left-wing interest groups, has been telling us for over four years. Their talking point is as simple as it is relentless. The Bush nominees are “out of the mainstream.”

Out of the mainstream has stuck: a benumbing slogan posing as substance. Mainstream is now such a given that when Bush nominees are attacked for being out of it, the range of desultory replies runs only from sputtering apoplexy (“Oh no they’re not!”) to platitudinous defenses that accept the premise as valid (“Judge so-and-so is solidly in the mainstream because…).

These glide past the essential point at the heart of the confirmation battle. Thankfully, the moderates’ reticence has given us an opportunity to scrutinize it — really, for the first time. Just what is this mainstream? What is this Golden Mean from which the president’s judges so “extraordinarily” depart?

The question is fundamental to the all-important public lexicon of this dispute, which is not only, or even primarily, about a handful of judicial nominees. It is over what kind of society we will be. Will the United States be governed by the free choices of its citizens? Or will it be dictated to by robe-clad oligarchs in accordance with their latest fads and fetishes? It is inattention to the terms of the debate that has left us careening toward the latter.

Historically, the Left has proved far more adroit at recognizing how critical debate language is to debate outcomes. Thus have abortion and assisted suicide been seductively repackaged as matters of “choice” rather than wrenching questions of life and death. Quotas that nakedly flouted equal-protection principles were congenially couched as “affirmative action,” and, later, as compassionate “outreach” and urbane “diversity” once the bloom was off the “affirmative action” rose. Indeed, liberals carefully brand themselves, finding “progressive” and “moderate” more suited to the popular palate than the dreaded L-word. And on it goes.

The filibuster fight provides another cautionary example. As one might expect in a democracy, an obstructive tactic that unabashedly nullifies majority rule ends up having a very uneven history — and one featuring its condemnation by many of the very moderates (ahem) now waxing about the ironic centrality of structural paralysis to the Senate’s élan vital. Yet, with so much at stake, the language battle shifted into high gear, and a simple rules change was routinely framed in the strident connotations of a “nuclear option.”

Of course, the filibuster was not used at all throughout much of the Senate’s history. It is currently unavailable for over two dozen types of legislative proceedings. And it has never, ever been systematically employed in connection with judicial nominations. Thus, it is difficult to understand how altering or eliminating it in that context could credibly evoke visions of mushroom clouds rising above a smoldering Capitol.

Still, “nuclear option” has stuck. It is the prism through which the game and the players are identified. With “Armageddon” securely stamped on the rule change — one that would restore a two-century status quo of simple-majority confirmations while guaranteeing nominees only a vote, not a win — those seeking such a change were naturally cast as “extremists.” Alternatively, the “brave minority” (i.e., the dwindling number of liberals Americans have chosen to elect) fighting off this “power play” and “attempted coup” (i.e. the concept that the people the voters put in charge actually get to be in charge) were, of course, “moderates” — the “sensible center” upholding the senate’s proud tradition of gridlock. (You may remember gridlock. It was a vice about five minutes ago).

Resolved: Let’s turn mainstream into Little Big Horn for the notion that literal nonsense must always be cemented into popular dogma. The opportunity is here, and there will never be a better case on the facts. For when one closely scrutinizes this mainstream that the Bush nominees are so far out of, it turns out to be a place not inhabited by very many Americans, either.

As Edward Whelan has painstakingly detailed elsewhere on this site (see here and posts cited therein), the mainstream that has been constructed by judges effusively lauded by the Left is in fact a redoubt where American sensibilities rarely carry the day. This “mainstream” invents new rights of access to U.S. courts for captured alien terrorists even as their confederates continue killing American soldiers. It provides for abortion on demand even as Americans show, again and again, that they prefer laws reining in the practice — especially in its most noxious “partial birth” form.

It is a “mainstream” that dispenses with rational caps Americans, alarmed by diminishing health-care availability, choose to place on noneconomic damages in medical-malpractice suits — the judges thus making American communities too costly for doctors but very lucrative for trial lawyers. It is a “mainstream” that imposes restrictions on the capital sentences Americans, in the laws they enact, believe are fitting for heinous murders.

This “mainstream” rejects the modest anti-obscenity laws by which Americans seek to insulate their neighborhoods and their children from the worst excesses of the pornography industry — on the spurious ground that digitized pedophilia must be licit if we are also to have Romeo and Juliet. It handcuffs lawful police pursuit of narcotics traffickers tormenting American neighborhoods. It seeks to enforce a farcical equality of results on Americans whose common sense appreciates that we are not all equal in talent and work ethic, and that the best one can reasonably demand is equality of opportunity. It is a “mainstream” that snickers at the patriotic traditions and religious symbols of Americans, finding them offensive to its preferred cathedral of nihilism.

And who are the champions, the architects, of this “mainstream”? Based on the 2004 electoral map, you can walk a 3,000-mile straight line in this country without bumping into one of them. Hence the need to blockade this “mainstream” by filibusters, its enactment at the ballot box being inconceivable.

When liberal activists bloviate about the “mainstream,” that is the place to which they are referring. Not a steady stream that courses reliably through our daily lives, but a tidal wave that would leave Main Street unrecognizable. Outside the federal bench, hardening blocs of the Democratic caucus, and the similarly Orwellian “mainstream” press, it is not “mainstream” in any real-world sense.

It is time to stop allowing unchallenged pretensions to the contrary. If the mainstream is to be our compass for finding “extraordinary circumstances,” it ought to bear some resemblance to the values and sentiments of the nation we are actually living in. At least if we’re committed to remaining that nation.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.

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