I'm going to expand on the idea at some length here; I'm going to start by considering some examples raised in responses to my post, and then discuss a little what I'm trying to get at that's a bit different from the regular flow of politics. I'll start with Ron Replogle's interesting post. I'm going to skip the interesting stuff, which has to do with politicians and ethics (c'mon, click through and read it) though, and focus on one bit:
Let's not get hung up on the issue of whether Bernstein’s memory, and therefore his sense of outrage, are selective. I’m sure Republicans would be happy to remind him of, say, Democrats’ unprecedented decision to start filibustering Circuit Court nominations just because the manifestly over-qualified Miguel Estrada would have made such an attractive Supreme Court nominee or Obama’s decision willfully to opt out of, and probably destroy, the system of public financing for presidential general elections just so he could exploit his monetary advantage over John McCain in the 2008 general election.I disagree on both counts. Filibustering on routine measures began under Republicans in 1993, not Democrats during the George W. Bush years. As it happened, Republicans were in the majority in the Senate from 1995-2000, and so filibustering took the form of burying nominees in committee, rather than demanding 60 votes on the Senate floor, but this was more of a case of mutual escalation (going back to Bork, and the Nixon nominees, and Abe Fortas); I think it's wrong to say that Democrats crossed some sort of important bright line in the Bush years. On the public finance opt-out, I just don't really see it as a norm violation; the option of opting out always existed, and the norm ever since 1976 has always been to exploit the rules whenever possible.
I'm open to "Democrats did it" examples, but I really don't think either qualifies.
On the other hand, Kevin Drum has a whole mess of alleged GOP examples, and I'm not really convinced with his, either. Newt's use of Special Orders? Innovative, yes. Norm-violating? Not really that I'm aware of. Leaving House votes open beyond the official expiration time? Republicans during the DeLay years certainly overdid it, but Democrats had done similar, though less extreme, things when they ran the House. He's right about the norm of Senators not campaigning against each other, although it's pretty trivial (and, for what it's worth, I'm aware of at least one example as early as 1988; for all I know this is a norm that has been violated on and off for years). I do think that Drum's example of judicial nomination shenanigans isn't trivial at all, but as I said above I think this is a case of both parties gradually breaking down norms, with overall responsibility murky.
On executive branch nominees, however, I do think -- despite the Democrats' responsibility for starting the ball rolling with the John Tower nomination in 1989 -- that Republican actions in the last few years are really norm-shattering and clearly qualify. It's one thing to go after individual nominees for whatever reasons; it's another to make normal policy deals in exchange for freeing a nominee; but what Tom Mann calls the new nullification, in which the minority party in the Senate attempts to stop an agency from functioning through the nomination process is something altogether different.
I did forget one other significant DeLay-era example, however, and it's an important one -- the threat of using the Florida legislature to overturn the results of the 2000 presidential election. I do not believe that any of the legal actions taken by either campaign or any of the courts, including the final SCOTUS decision, count. Taking the other side to court after an election didn't begin in 2000, nor was that year the first one to feature partisan decisions by judges or Justices. In my view, in the event, Bush stole the election fair-and-square (that is, I believe the evidence shows that Al Gore received more votes in Florida than George W. Bush, had the votes been counted properly under the relevant laws -- but the relevant laws also allow for legal action, and partisan decisions, even ones that are difficult to defend). However, the threatened intervention of the Florida legislature was entirely norm-shattering, and to me at least highly disturbing.
OK, those are the examples. Can I tease out a principle here? I guess I can better just work out some qualifications. To count, an action has to violate a clearly established norm. That's why I don't count Democratic filibusters of Bush-appointed judges (Mark Tushnet counts both the filibusters and, to a lesser extent, the GOP "nuclear option" threat), because I think that the norm against routine filibusters was shattered earlier, in 1993-1994. It must also be substantively important, generally dealing with large, "who governs" types of things. The other hallmark of the cases I'm including -- untimely redistricting, the changes in filibusters after the elections of Bill Clinton and Barack Obama, recall elections and impeachment without significant cause -- is that they are shifts from one set of neutral rules to another. Take redistricting: neither the old system of drawing new lines every ten years, or the DeLay system of drawing new lines whenever the majority feels like it, is inherently more fair or just. Neither is either system inherently better for the Republicans or the Democrats. What's problematic is only shifting the rules in midstream.
Again: all parties and politicians attempt to use innovation to gain advantage, and there's neither anything wrong or unusual about that -- as long as it's within the bounds of where innovation and fighting about the margins of the rules is clearly expected.
OK, that's the case I want to make, at least tentatively, for now. I'm not sure I have this quite right, so comments are very much welcome.