WASHINGTON – On Monday, Republicans were within hours of passing a procedural rule that would have eliminated the Democrats’ unprecedented use of the judicial filibuster. It would not only have freed from filibuster limbo seven Bush nominees to the circuit courts, but it would have assured future nominees, particularly to the Supreme Court, an up-or-down vote.
Then the Republicans flinched. They settled for something less. Far less. How much less is still a matter of dispute, but the fact that they settled when they had within their reach the means to restore Senate practice to the status quo ante 2001 is indisputable. That in itself is a victory for the Democrats and a defeat for the Republicans.
The Missouri Compromise of 2005, like its predecessor, has left a few things uncertain (including the fate of two long-languishing nominees, Henry Saad and William Myers), but two things are quite certain.
First, the compromise legitimized the principle of the judicial filibuster. Until 2001, not once in more than 200 years had a judicial nominee been denied appointment to the court by Senate filibuster.
The Democrats broke all precedent by systematically using it to block Bush nominees in his first term in the hope that they would recapture the presidency in 2004. They did not, and have continued the filibuster into his second term. This violation of Senate tradition has now been codified in writing as legitimate so long as circumstances (“extraordinary,” in the eyes of the beholder) warrant.
The second sure thing is that the seven Republicans who went against their party are the toast of the Washington establishment. On Monday night, they came out of the negotiations beaming. And why shouldn’t they? They are now being hailed as profiles in courage, prepared to put principle ahead of (Republican) party. We will soon see glowing stories in the mainstream press about how they have grown in office. (In Washington parlance, the dictionary definition of “to grow” is “to move left.”) After that, the dinner party circuit, fawning articles about their newfound stature and coveted slots on the Sunday morning talk shows.
Mike DeWine, one of the Magnificent Seven, was heretofore best known for the fact that one of his staffers (subsequently fired) published accounts of her sexual escapades while working in DeWine’s Senate office. Now he might be known for something else.
The Democrats on the whole were even happier. When Robert Byrd, former master-manipulator of Senate rules, comes out and says, echoing Benjamin Franklin, that they have “kept the Republic,” you know it is time, if not to fear for your country, then to fret heavily for it.
How did this come about? Just hours before the Gang of 14 hatched their compromise, Bill Frist had the votes for the nuclear option. Frist was going to lose five senators, and that would have meant a 50-50 tie broken by the president of the Senate, Vice President Dick Cheney, in favor of the Republicans.
The five losses were to be expected. Three were New Englanders: two from Maine (Olympia Snowe and Susan Collins) and one from Rhode Island (Lincoln Chaffee). No surprise here. They are a different kind of Republican, the almost extinct liberal Republican, and they might actually have been acting on principle.
Then there is John McCain, who is a party unto himself. Add to that John Warner, who decided to go against his party for what can only be called constitutional vanity. He sees himself as a lion of the Senate. He has been around for so long that perhaps he feels ownership, if not authorship, of the Constitution itself, and he allowed himself to be convinced by Byrd, an even older lion, that together they were saving it.
Had it remained at those five, the judicial filibuster – the bastard child of Democratic bitterness over recent lost elections – would now be banished.
Enter two latecomers, DeWine and Lindsey Graham, who were prepared to vote for the nuclear option but decided to cross the aisle and make the tough choice to join the lionized center. They both now say that if the Democrats start to filibuster again, they will defect back to the warm embrace of Bill Frist and go nuclear. Will they be willing to forfeit their newfound celebrity and stature as statesmen? That would be a profile in courage.
Charles Krauthammer is a Washington Post columnist. Contact him by writing to letters@charleskrauthammer.com.
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