NEGOTIATIONS between Senate Majority Leader Bill Frist (R-Tenn.) and Senate Minority Leader Harry M. Reid (D-Nev.) to avert a showdown over judicial nominees have broken down. So perhaps as early as today, Mr. Frist will bring to the floor two of the most hotly contested of the president's would-be judges: Priscilla R. Owen and Janice Rogers Brown. A carefully scripted Kabuki dance will follow: Both sides will yap for several days, solemnly invoking great principles that, were roles reversed, they would just as solemnly decry. Democrats then will filibuster the nominations, and Mr. Frist will invoke the so-called "nuclear option," by which a simple majority of the Senate will seek to do away with the minority's ability to stymie a judicial nomination. Whatever one thinks of filibustering judges, this effort must fail.
The merits of the filibuster itself must be distinguished from the brute-force means Senate Republicans are deploying in their effort to end its use against judicial nominees. A principled argument can be made against the filibuster, which is, after all, a device to frustrate majority rule. A principled argument for the filibuster is also possible: The need to attract 60 votes encourages consensus nominees who can attract at least some support from the party out of power. Whichever is right, no good argument exists for changing the rules in the manner that Republicans are contemplating.
Senate rules provide a mechanism for their own alteration: a two-thirds vote of the body. Mr. Frist, by contrast, wishes to change a long-standing rule by a kind of procedural trick. The chair would rule that the filibuster is unconstitutional as applied to judicial nominations, and a simple majority would then affirm that ruling. If this succeeds, no Senate rule is safe. Any temporary majority could use this same procedure to get around any inconvenient rule for the most transient of political reasons. The Senate should not circumvent its process for changing its rules simply to confirm a few judges -- even ones who have been treated unfairly.
If Republicans are serious about fair process for judicial nominees -- rather than simply fair process for the current Republican president's judicial nominees -- there is an alternative to going nuclear. They could advocate rules that would guarantee swift committee hearings and up-or-down floor votes starting in 2009, when nobody knows which party will control the Senate or the White House. Both parties could then debate the issue as a question of principle, not expediency.
There is still a chance that a bipartisan group of moderates can reach a compromise to move some of the president's nominees and stop the nuclear escalation. If this effort fails and the Senate is forced to vote on Mr. Frist's gambit, the deciding votes will be those of a handful of moderate and traditionalist Republicans. Senators such as Arlen Specter (R-Pa.) and John W. Warner (R-Va.) need not concede the legitimacy of the Democrats' behavior to reject Mr. Frist's response. Rather, they need only accept that however Senate Democrats may have abused the filibuster, there's a right way and wrong way to respond. A nuclear detonation would be a still bigger abuse.