WASHINGTON – The Senate returns to work this week facing a calamity that is not yet an inevitability. The partisan dispute over the confirmation of several of President Bush’s judicial appointments could be headed for the “nuclear option,” which would likely cripple its capacity to legislate seriously on any of the pressing issues on the national agenda.
Barring a compromise, Republican Majority Leader Bill Frist has locked himself into a position of seeking a parliamentary ruling that would allow Republicans, by majority vote, to suspend the minority Democrats’ right to filibuster any more judgeships. Democrats in the last Congress used the threat of endless debate to block 10 Bush appointees to the circuit court benches one step below the Supreme Court. Bush has resubmitted seven of those names and is pressing Frist to bar the filibuster and allow them to be confirmed by a 51-vote majority, an easier mark than the 60 votes needed to stop a filibuster. If that happens, Democrats say they will block the Senate from considering any of the measures on Bush’s legislative wish list.
Both sides offered their versions of a compromise before the Senate took a week off to let tempers cool. Democratic Minority Leader Harry Reid said his party would give a pass to some – but not all – of the disputed judges if Republicans would drop the most controversial of the Bush choices and shelve any effort to change the filibuster rule. Reid also said that in the future, filibusters would be “rare,” but his spokesman, Jim Manley, denied published rumors that Reid also signaled to the GOP that there would be no filibuster against Bush’s first Supreme Court nomination. “He can’t make that promise,” Manley told me.
Frist not unexpectedly rejected Reid’s offer, saying that Bush believes all his judges deserve an up-or-down vote. Frist, in turn, outlined his own proposal, which was a bit more complex. In return for the Democrats accepting a ban on judicial filibusters, Frist offered to guarantee up to 100 hours of floor debate on each court appointee. Acknowledging that Republicans had blocked several of Bill Clinton’s choices for the bench by refusing them hearings or approval in the Judiciary Committee, Frist also said he would pledge that all future nominees would get to the full Senate for an up-or-down vote.
Reid said he could not accept that proposal because “after 100 hours, the rights of the minority are extinguished.” But the Democrats would be well advised to make a serious counteroffer, rather than just reject Frist’s overture.
It is hard to believe that, when there is a serious case for rejecting a judicial nomination, it cannot be made in 100 hours of floor debate. What Reid is really saying is that he does not trust the majority of senators of both parties to weigh the merits of these judges after hearing all the arguments, pro and con, for their confirmation.
I think that distrust is unjustified. I believe that the centrist senators – the moderate Democrats and Republicans who hold the balance of power in the Senate – will give due deference to the president’s selections for the bench but exercise their own judgments on those jurists’ fitness for these lifetime appointments.
But Frist’s suggestion offers a way to test that confidence. Democrats should accept the Frist proposal for the seven disputed circuit judgeships and see what happens when they are examined carefully in extended debate on their individual merits. Democrats should not commit now to abandoning their right to filibuster a future Supreme Court nominee. Frist should concede on that point.
There is no Supreme Court vacancy at the moment, and hence no pressing need to set or change the ground rules for considering such a nomination. The possibility of a filibuster could help steer Bush away from a highly controversial or ideological choice. Meantime, the pending circuit court judgeships could serve as test cases for the Senate’s ability to look beyond partisanship and weigh these jurists on their merits.
If everyone voted on party lines on every one of the seven appointees, then there might be no escape from the destructive potential of the “nuclear option.” But I think the Senate is better than that, and I think that senators deserve a chance to demonstrate that they can meet their constitutional duty to share with the president the task of staffing the third branch of government.
If Frist has confidence in his colleagues, he will welcome such an experiment. And if the Democrats are prudent, they will withhold the threat of a filibuster and let the first 100-hour judicial nomination debate begin.
David Broder is a Washington Post columnist. Contact him by writing to davidbroder@washpost.com.
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