The Nevada Appeal

OPINION

Reid wants to have it both ways on Yucca and judgeships

BY STEVEN MILLER
Nevada Policy Research Institute

Sunday, April 14, 2002

For almost 20 years Nevada's senior U.S. senator, Harry Reid, has led this state's struggle to block the shipment of nuclear waste to Yucca Mountain.

For an elected politician, the senator has been noticeably steadfast on this subject. Some may attribute his consistency to smart local politics, others simply to his native personality. But whatever the explanation, anyone concerned over the kind of majoritarian oppression that the Nuclear Waste Policy Act embodies has to appreciate the senator's energetic investment in this issue. Clearly Senator Reid has identified himself on a profoundly personal level with this fight against what de Tocqueville named "the tyranny of the majority"

There is great paradox here. Reid has arguably devoted a lifetime to making himself, in Howard Baker's phrase, "a man of the Senate." Yet on this issue, for years, he has dedicated himself to frustrating the will of an overwhelming majority of his fellow senators.

Similarly, Reid is a fiercely partisan Democrat and a key politico-legislative strategist for the parry that for seven decades has sought to move all kinds of social and economic questions into the political realm, where government can decide them. Yet in the matter of Yucca Mountain, Reid has transmogrified into one of the nation's most ferocious critics of government -- at least so long as it is the Department of Energy in the crosshairs. Shining unwelcome light on the DOE's often-substandard competence, integrity and management, Reid regularly demonstrates that Ronald Reagan was right -- the department should be dismembered. Yet close observers of government know -- and many investigations have shown -- that almost any federal department, under similarly close scrutiny, will also suffer deep embarrassment. Reid's DOE critique, therefore, implicitly indicts Big Government per se - notwithstanding all Reid's own long and fulsome service to precisely that principle.

But the paradoxes -- or self-contradictions -- residing in Reid's commitments go even deeper. And at least one of them reaches so far that it may doom this cause of Reid's heart, this campaign he has pursued for so many years -- overturning the Yucca Mountain juggernaut.

What seems to have escaped observation in Nevada is the extent to which the senator's very successes, as factotum for his party in the U.S. Senate, necessarily undercut Nevada's chances of eventually winning the Yucca Mountain contest.

As Gov. Kenny Guinn has emphasized, Nevada's best odds of ultimately prevailing lie in the courts. But these odds decline substantially if Nevada's cases are not conducted before, and decided by, judges who respect the Founders' design for this Constitutional republic.

James Madison, in Federalist Paper No. 51, foresaw the kind of situation in which Nevadans today find themselves: "If a majority be united by a common interest, the rights of the minority will be insecure." The Constitution could deal with that danger, Madison showed, through its various applications of the federal principle. And he highlighted the Constitutions blueprint for our "compound republic," where "the power surrendered by the people is first divided between two distinct governments" -- the state government and the federal government.

So what Nevada needs in its legal fight are justices who understand, with Madison, that to the degree the federal government gets away with commandeering state powers, to that same degree Americans are deprived of security for their rights.

Unfortunately for the Silver State, it is precisely judicial nominees of this cut who are being fought tooth and nail by Reid's own party in the Senate.

No doubt our senior senator assumed, when he enticed Vermont's Jim Jeffords to turn coat and give control of the Senate to the Democrats, that he was securing for Nevada (and himself, as Assistant Majority Leader) maximum leverage in the matter of Yucca Mountain. But our senator's "coup" also necessarily delivered control of the Senate Judiciary Committee to a highly partisan claque already infamous for its hostility to the principles of Madison's federal system -- and to judicial nominees known to respect those principles.

This is not good for Nevada. Nevada needs -- indeed, all America needs -- its cases heard by Madisonian justices, justices of just the sort that the partisan majority running the judiciary Committee has for the better part of the last year blocked.

Sen. Reid needs to find a way to exert his influence in behalf of the state he represents, and all Americans, and end the current shamefulness in the Senate Judiciary Committee.

Continuing to attempt to proceed in two directions at once will surely get him, and the Silver State, nowhere.

Steven Miller is a policy analyst with the Nevada Policy Research Institute.