WASHINGTON – It is not too late to avoid a Senate-splitting rules fight over President Bush’s embattled judicial nominees and achieve something positive for both the public and the cause of good government, if only both Democrats and Republicans can free themselves for a moment from the death grip of the opposing outside interest groups.
Here is what should happen: The Democratic Senate leadership should agree voluntarily to set aside the continued threat of filibustering the seven Bush appointees to the federal circuit courts who were blocked in the last Congress and whose names have been resubmitted. In return, they should get a renewed promise from the president that he will not bypass the Senate by offering any more recess appointments to the bench, and a pledge from Republican Senate leaders to consider each such nominee individually, carefully and with a guarantee of extensive debate in coming months.
Why should the Democrats be the first to step back from the abyss of the “nuclear option,” the possible rules change that would eliminate all judicial nomination filibusters and thereby make confirmation possible with 51 – not 60 – votes?
The principled answer is that elections matter. Voters placed Republicans in control of the White House and the Senate, and, while the opposition still has a constitutional role to play, at the end of the day that function has to be more than talking important matters to death.
But there are also practical reasons for the Democrats to take this path. Their tactical position is weak. Two more nominees were cleared this week by the Judiciary Committee. The Republicans – with Vice President Cheney in the chair – could well muster the 51 votes needed to change Senate rules and abolish judicial filibusters. If that were to happen, Democrats have said they would use every rule and procedure available to them to bring the work of the Senate to a halt.
Building such a roadblock on consideration of such important legislation as energy, Social Security, welfare reform and the routine financing of government would bring down deserved public condemnation, and the mighty megaphone of the White House would assure that Democrats took the brunt of the blame. Democrats need to remember what happened to Newt Gingrich when he shut down the government for a few days in 1995 in a budget dispute with President Clinton. It was not Clinton who lost public support.
In addition, if the judicial filibuster were ended by a vote of the Senate, it would vanish entirely. By yielding the right to filibuster these specific circuit court appointees, the Democrats could deny the Republicans any immediate pretext for changing the rules – and preserve the possibility of a filibuster should Bush later submit someone they find seriously objectionable for a vacancy on the Supreme Court.
The leverage they relinquish today may be much more important to them tomorrow.
But there are also positive goals that Democrats and Republicans can achieve by this kind of agreement. These circuit judgeships – one step below the Supreme Court – are important, but today they are almost invisible. By securing agreement that the Senate would hold serious, sustained debates on each one individually, perhaps giving one week of each month to each judicial confirmation debate until the backlog is cleared, the Democrats could bring much more visibility and accountability to the entire confirmation process.
Instead of sending a message that they do not trust their Republican colleagues’ judgment – and therefore feel justified in preventing a vote – the Democrats would be saying to their colleagues and the country, we trust you to take your “advise and consent” duties seriously.
And they should feel such trust. The balance of power in the Senate is not in a right-wing cabal; it is in the moderate center. You can see that in the careful way the Senate Foreign Relations Committee is weighing the nomination of John Bolton as ambassador to the United Nations. You saw it also in Senate debate on the budget resolution.
Except for Clarence Thomas (who was supported by only 11 Democrats), every single Supreme Court nominee of Presidents Ronald Reagan, George H.W. Bush and Bill Clinton was confirmed with the support of the overwhelming majority of opposition-party senators.
The outside groups on the right and left are pressuring senators for a showdown, telling them not to yield an inch. Only the senators themselves can defend their institution from the damage the “nuclear option” would cause.
They have the capacity to do it – and the clear duty.
David Broder is a Washington Post columnist. Contact him by writing to davidbroder@washpost.com.
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