The Nelson Option

Thursday, May 12, 2005


(R-Tenn.) and conservative interest groups are bent on triggering the so-called nuclear option to end filibusters of judges. Democrats and allied liberal groups are no less committed to stopping several of President Bush's judges. A damaging confrontation is now inevitable unless moderate senators of both parties take a deep breath, ignore their party leaderships and reach an understanding of their own. Sen. Ben Nelson (D-Neb.) is making an admirable effort to broker such a deal.

Having not generally supported the filibusters of Mr. Bush's nominees, Mr. Nelson is one of the few senators of either party who is not responsible for his party's contribution to the current mess. Sen. Arlen Specter (R-Pa.), during the Clinton administration, similarly behaved honorably. Mr. Nelson's proposal is that six members of each party sign a memorandum of understanding under which the Republicans would pledge to oppose the "nuclear option" and the Democrats would pledge to support cloture on some of the seven currently filibustered nominees. They would also pledge to refrain from supporting future filibusters except under the most extraordinary circumstances.

What exactly would constitute such extreme circumstances is not entirely clear -- which is actually the point. Democratic signatories would know that their understanding of extreme circumstances might not correspond to that of the Republican signatories. A decision, in other words, by any of the six Democrats to support a future filibuster could -- if the Democratic case is not widely accepted -- cause the Republicans to consider themselves released from the deal. The deal would therefore preserve the current rules, yet it would also give Democrats genuine reason to think twice before derailing a future nominee who enjoys majority support.

Mr. Nelson's spokesman, David DiMartino, says the senator is confident that six Democrats support the idea and that interest on the Republican side is strong as well -- though Sen. Trent Lott (R-Miss.), who had been working on the compromise, has recently denied that a deal is close.

The leaders of both parties have waved off such a compromise; the good news is that Mr. Nelson doesn't need them. A showdown can be averted if a half-dozen senators from each party can unite both to stop filibusters and to prevent reckless rule changes. Are there enough senators who value their institution enough to resist the irresponsible incitements of the interest groups on both sides? Senators such as John W. Warner (R-Va.) and Mr. Specter have been keeping their own counsel on how they will vote if Mr. Frist pushes the nuclear button. Mr. Nelson's proposal offers such senators the ability to take matters into their own hands.

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