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Romanticism about the Senate and "great senators"

By Jack M. Balkin

Iwas interseted in a story in the NYTimes on how the Senate changed over Ted Kennedy's magnificent career. It begins as follows:

In the spring of 2003, the United States Senate was heading for a meltdown. Democrats were blocking confirmation of federal judges. Republicans were set to retaliate with a ?nuclear option?: a new rule stripping senators of their right to filibuster judicial nominations.

Senator Edward M. Kennedy, fearing for the future of the institution, turned to a historian for help. He invited Robert A. Caro, author of the epic Lyndon B. Johnson biography, ?Master of the Senate,? to speak to lawmakers about Senate traditions, and the founding fathers? vision of it as a place for extended debate.

To Mr. Caro, Mr. Kennedy?s own knowledge of Senate history and reverence for its ideals was yet another reminder of why his host deserved a place in the pantheon of Senate greats, alongside men like Webster and Calhoun and Clay. But it was also a reminder of how much the Senate had changed during Mr. Kennedy?s 46 years there.

?Ted Kennedy was a senator out of another, very different, Senate era: an era in which senators who believed in great causes stood at their desks, year after year and decade after decade, fighting for those causes, and educating the country about them,? Mr. Caro said.

So what's wrong with this picture?

I begin with the fact--and I argued at the time--that it was a sign of the almost criminal stupidity of the Democrats that they fell victim to the "nuclear option" threat. The filibuster is a thoroughly pernicious institution. It would have been far better for the country--and for the Democratic Party--had the "nuclear option" been invoked as a key step to getting rid of the filibuster entirely. Ironically, the filibuster is most defensible with judicial appointments, given that they are lifetime. They are least defensible for limited-term appointments and somewhere in between with regard to legislation. But, overall, the institution has outlived its usefulness, unless, as I've argued earlier, one is a fan of John C. Calhoun and concurrent majoritarianism.

So that brings us to Calhoun, a thoroughly brilliant man who devoted his considerable talents, for most of his career, to nurturing and defending chattel slavery. It's really as simple as that. The United States would have been better off had Calhoun been thrown from a horse and killed in, say, 1827. Caro, whose books on Johnson and both great and flawed by a tendency to demonize at times a remarkably complex man, has an untenably romantic view of "great senators." Kenned is great because of the causes for which he fought, as was true of, say, George Norris, Robert LaFollette, and Robert Wagner. One might say of Robert Taft that he was a great senator not simply because he was a formidable reactionary, but because we can recognize, 60 years later, his prescience in some of the warning he delivered about our own turn to presidential unilateralism around the world. Perhaps Clay, the "Great Compromiser," is great because he saved the Union in 1850 (though this requires an argument that saving the Union was worth further compromises with the Slavocracy. If one likes Clay, then why not go ahead and praise Taney, who was also trying to save the Union in 1857 in Dred Scott?

I find that Ted Kennedy's death moves me, among what might be called "natural deaths" (as distinguished from assassinations), more than that of any other public figure since Pope John XXIII. Both did what they could to reform perhaps terminally sclerotic institutions in distinctly progressive directions. For that they deserve the admiration and esteem of all of us. But it desecrates what was so admirable about Kennedy to mention John C. Calhoun in the same breath. It is, indeed, like those say that both Churchill and Hitler were "great leaders" because, along some totally amoral metric, they were able to move their audiences to do remarkable things. Well, yes, but anyone who stops there is a moral idiot.

Full post as published by Balkinization on August 28, 2009 (boomark / email).

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