Avoid the War, Cont’d

Posted May 17, 2005 at 4:35pm

If the Congressional Record featured a Doomsday Clock, as the Bulletin of the Atomic Scientists does, it would show the Senate with just seconds to go before midnight. Leadership-level negotiations to avoid the “nuclear option” have broken down. Now it’s up to six Democrats and six Republicans, at a minimum, to seize control of the chamber in a way that avoids parliamentary meltdown.

As Senators consider what to do about judicial filibusters, we’d urge them to put their own consciences and judgment, plus their respect for the Senate as an institution, ahead of party loyalty, rancor by the opposition and fealty to outside interest groups.

Immense pressure is being placed on Republicans by the religious right and other hard-line conservatives to accept nothing short of a change in the Senate rules that will ban future filibusters of judicial nominees. The right will accept nothing short of a total victory over Democratic “obstructionists,” apparently believing that its side will never again be in the minority and eager to block an odious nominee.

On the other side, Democrats are under massive pressure from liberal groups to filibuster all seven of President Bush’s controversial appeals court nominees and to resort to the filibuster whenever Bush produces a nominee they regard as “extremist.” In the 108th Congress, Democrats broke with historic precedent and filibustered 10 nominations, arguing that Bush was a “minority” president and shouldn’t be allowed to “pack” the courts with “right wingers.” They are persisting in using the filibuster — not persuasion of their colleagues — despite the fact that Bush won a popular majority in the 2004 election.

Influenced by the right, partisanship and the Bush administration, Republican leaders are determined to use their majority to change Senate rules so that all judicial nominations henceforth are confirmable by simple majority vote. This requires sweeping aside current Senate rules, which hold that changing Senate rules requires a two-thirds vote. Influenced by the left, partisanship and disdain for Bush, Democratic leaders have vowed that they will bring Senate business to a halt if Republicans go through with their plans.

Fortunately, an independent-minded group of Senators, led by Ben Nelson (D-Neb.) and John McCain (R-Ariz.), is trying to pull the chamber back from the brink by working out a compromise. Under such a deal, six Democrats would depart from their party’s filibuster line on some or all of Bush’s nominees and six Republicans would depart from their party’s line on the rules change.

If we were writing the deal, the Democrats would refrain from filibustering all of the current nominees and the Republicans would oppose the rules change, with both sides reserving the filibuster only for extraordinary cases. In addition, both sides would pledge that, under different circumstances, they would not bottle up judicial nominations through non-filibuster means, including stalling them at the Judiciary Committee — a tactic used frequently by Senate Republicans against nominees of then-President Bill Clinton.

But we’re not writing the deal. In considering whether to support what is worked out — if anything is — we urge Senators to consider not the party wars and the culture wars but whether Bush’s nominees are genuinely “extreme” and whether they want to begin operating the Senate by simple majority rule.