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Nuclear Freeze

Friday, April 8, 2005; Page A24

WITH BOTH parties furiously mobilizing their bases, the war over judicial nominations seems headed for an apocalyptic showdown. Republicans, incensed at Democratic obstruction, threaten the "nuclear option": a procedural trick to abolish the filibuster for nominations. Democrats threaten to retaliate by bringing the Senate to a standstill. Were President Bush and Senate Majority Leader Bill Frist (R-Tenn.) inclined toward statesmanship, they could tamp down the crisis. They have shown little such inclination, though this week has seen encouraging signs from Mr. Frist.

As a rule we are not fans of tactics, such as the filibuster, that are intended to prevent up-or-down votes on judicial nominees. Decency demands that nominees receive reasonable and prompt consideration; the Senate owes the presidency and the judiciary timely votes as well. But Republicans are wrong to single out the filibuster as an abomination that must be placed out of bounds in all circumstances. It is one of various procedural hurdles senators can use, but historically have used rarely, to slow a nominee's progress. These obstacles can be abused, but they can also encourage consultation between the White House and senators.

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The problem in recent years has been how frequently senators of both parties deploy these procedural devices, which include committee rules, anonymous holds and filibusters. The tit-for-tat escalation in the judicial battles has led each side to regard its own abuses as justifiable responses to previous wrongs. The goal for a president who seeks fair treatment of his nominees should not be to obliterate rules the minority can exploit but to reestablish that such rules are to be used only in the most unusual cases.

Such an option has long been open to Mr. Bush and remains so. He could, as Judiciary Committee Chairman Arlen Specter (R-Pa.) recently said, consult with Democrats on nominations. He could accommodate their legitimate concerns about instances in which Republicans mistreated President Bill Clinton's nominees. He could pick nominees who are qualified and to his ideological liking and yet immune to plausible partisan challenge; even in a highly charged atmosphere, many such people exist. If he showed this kind of leadership, his demand for up-or-down votes would carry far more weight.

Republicans also could dramatically raise the political costs of the filibuster without resorting to abolishing it. Senators who demanded extended debate used to have to actually engage in extended debate -- that is, they had to stay on the floor. The modern filibuster is a fake; threatening it is the same as carrying it out. If Democrats had to stop the Senate from conducting business to prevent a vote on a nominee, they might choose their targets more judiciously.

But instead of seeking common ground or forcing Democrats to take responsibility for their filibusters, Republicans are seeking to change a traditional feature of Senate life -- the notion that a minority can, if it's prepared to take the political heat, stop the Senate from voting. What's more, to do so they are seeking to circumvent the normal procedure for changing Senate rules, which requires a two-thirds vote.

The self-righteous liberal defense of a legislative tactic that many liberals once decried carries more than a whiff of convenience and hypocrisy. But it's at least conceivable that some day a Democratic president will name judges and that a Democratic Senate will seek to confirm them rapidly. When that day comes, Republicans will wish that they had refrained from rearranging the Senate so that the majority need make no accommodations and can blithely change any rule that becomes inconvenient.

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