The Washington Times

The Republican Party is in political trouble as a result of the compromise on judicial nominees, but the situation is hardly beyond recovery: Democrats, too, are in some peril.

As matters stand, in accordance with the deal struck by seven Democratic senators and seven GOP senators, two of President Bush’s appellate-court nominees will continue to be filibustered, will accordingly never reach the Senate floor and will therefore in all likelihood be withdrawn by the White House.

Many conservative Republicans think this is an outrage. And there is a distinct possibility that, if conditions persist, by November 2006 outrage will have turned to dismay and demoralization, with the result that GOP base turnout will be depressed: a classic scenario for the opposition party to pick up seats in Congress.

Whence the outrage? It is, simply, the conviction among party activists that “moderate” Republicans in the Senate sold out principle on judicial nominees. The principle is that all judicial nominees deserve an up-or-down vote on the Senate floor, especially if such a vote would yield the majority required for confirmation. The idea that the hurdle judicial nominees have to clear is 60 votes – the number Senate rules require to end a filibuster – is a bald-faced minority hijacking of the Senate’s “advice and consent” responsibility, in the view of the party’s activist wing. And seven Republicans have now gone along with this hijacking by refusing to agree to pass by majority vote a rule change that would stop the abuse of the filibuster.

Under the compromise, Democrats will have bagged two of the nominees they targeted. But three will make it through. And here, one ought to take pause. If this had been, from the beginning, a fight over a Democratic effort to block two of the president’s nominees by any and all of the ample means of chicanery available to members of the Senate, including the filibuster, and if it had been successful, Republicans would have been steamed. But they would not have worked themselves into anything like their current lather.

There would have been no talk of a “nuclear option” or a “constitutional option” to change the Senate rules. The general rhetorical point that nominees deserve an up-or-down vote would be declared in full knowledge that the history of the process shows Republicans and Democrats alike acting to keep the other side’s nominees from getting to the Senate floor. The notion that there is something somehow “unconstitutional” about the Senate’s rules would never have arisen or, if it did, it would have been dismissed as no more than a rhetorical flourish. And Republicans would probably be pleased by the confirmation of nominees of such quality as the three who are going through.

Now, if you want to really aggravate your own people, what you should do is elevate an issue to a position of maximum prominence, localize the argument around your maximal demands and the maximal means of achieving them, build the expectation that anything less than total victory is utter defeat, keep the issue at a rolling boil for about two solid months in which nothing else much is going on politically – then lose control of the process in such a fashion that an outcome that would have been entirely acceptable in any past context looks to your side like you have been routed.

I thought Democrats would have a hard time accepting any of the filibustered nominees. To a degree, that’s true. But they seem to be exhibiting a certain amount of tactical flexibility. And that makes sense, because Republicans are, in the immortal phrase of Weekly World News columnist Ed Anger, “pig-biting mad.” What to do? Well, this has all really been about the Supreme Court, hasn’t it?

To recover, the White House needs exactly the right nominee for chief justice should William Rehnquist step down. That would be Justice Antonin Scalia. (Justice Clarence Thomas would solve the problem with the right, but would create an opportunity for Democrats to try to block the appointment in a way that Justice Scalia doesn’t.) It will then be up to Senate Majority Leader Bill Frist to persuade the seven GOP dealmakers that a Democratic filibuster of Justice Scalia would be unacceptable under the terms of their deal. After all, Justice Scalia’s elevation would do nothing to the balance on the court, and the idea that the constitutionally mandated position of chief justice of the United States would sit vacant because of a Democratic filibuster of a nominee who is already on the court and commands majority support in the Senate is outrageous. It will be up to the GOP seven to make that position clear to their seven Democratic counterparts.

Who, then, takes the Scalia seat? From the vantage of optimal GOP political impact, one of the three who get through according to the terms of this deal. They will just have been confirmed in accordance with it; it would be difficult for the Democratic seven to switch sides and now argue “extraordinary” unacceptability.

That’s the point at which Democrats might begin to regret (and Republicans grudgingly accept) last week’s deal.