Sunday, May 8, 2005
WE BELIEVE THAT presidents are generally entitled to deference in judicial nominations and that their nominees are generally entitled to up-or-down votes. So we ought to support the Republicans' detonation of the "nuclear option" when the Senate returns from recess this week, right? Well, not exactly.
The "nuclear option" involves a procedural trick by which the Senate, which normally changes its rules only when 67 or more senators agree, would rewrite a rule by majority vote. Leader Bill Frist (R-Tenn.) would use this procedure to change the rules to prevent filibusters on judicial nominations. We oppose this in part because it presupposes that history began in 2001 -- that judicial nominations are a fraught subject only because Democrats have been blocking President Bush's appointments.
In fact, civility in the confirmation process has been eroding for some time, and both parties are to blame. Republicans used their own procedural devices, different from filibusters but no less odious, to block and stall consideration of qualified nominees of President Clinton. For them now to fashion a one-sided solution to a two-sided problem is to extend the unfairness and partisanship and guarantee another round of recrimination.
That is why the best outcome would be a compromise that leaves the rules intact but establishes procedures, accepted by both sides, that presume fair consideration for every nominee. It ought to be possible; it's pretty much how the system used to work. Democrats would have to recognize that presidents get to appoint qualified nominees -- an understanding that allowed both Antonin Scalia and Ruth Bader Ginsburg to be elevated to the Supreme Court with near-unanimous Senate support. Mr. Bush, who bears a good share of culpability for the current impasse, would have to recognize in his appeals court nominations the injustices that preceded him. Senators of both parties would have to tune out the zealous interest groups that value purity over good government.
But we oppose the nuclear option for another reason, too: It's rarely a good idea to fashion long-term institutional change for short-term tactical benefit. Nothing illustrates that more clearly than the positions of convenience both sides now take on what should be an issue
of principle. For most of the past century, liberals viewed the filibuster as retrograde and antidemocratic. Only now that they are in the minority have they seen the virtue -- not to mention the Founders' handiwork -- in minority obstructionism.
The Republicans have their own situational ethics, having come rather late to the purity of their belief in prompt up-or-down votes for every nominee. Moreover, they continue to defend the filibuster when it comes to legislation, citing principled justifications for minority empowerment: that it cools extremism, promotes bipartisan solutions and slows decisions taken in haste or passion. It's not so terrible, they say, to have to persuade 60 senators before imposing momentous change on the country, but they find offensive the same logic applied to a Supreme Court nominee.
Is there more to either side's conversion than a lust for short-term political advantage? There is an honorable way to find out: If compromise proves impossible, the Republicans should propose a reform of Senate rules that would take effect in January 2009.
The debate on the merits and evils of the filibuster could then take place where Republicans and Democrats both say it belongs -- on the level of principle. Democrats could explain why they have lost faith in majority rule. Republicans could explain why majority rule is good sometimes, but not all the time. And both sides would be arguing without knowing who might reap tactical benefit.