Nuclear Brinkmanship

Sunday, May 22, 2005

WITH THE Republican motion filed Friday to force a vote on the nomination of judicial nominee Priscilla R. Owen, the Senate walked to the edge of a cliff. Senators spent the past few days hypocritically staking out grandiose positions of principle that they would probably denounce were roles reversed and a Democrat nominating judges. After a brief respite, they will return this week and may dive off the cliff; Democrats would block a vote on Justice Owen, a member of the Texas Supreme Court and a nominee for the 5th Circuit Court of Appeals, and Republicans would respond by trying to change the rules concerning the filibuster using a simple majority vote. If there is hope to avoid this train wreck, it now lies with neither party's leadership but with a handful of senators of both parties.

The posturing of both sides is transparent. Republicans wax indignant about the abuse of qualified nominees, as if they did not abuse President Bill Clinton's selections. Their transgressions -- forcing qualified nominees to languish for years, for example -- were part of an all-but-open strategy of delay and obstruction. Then-Majority Leader Trent Lott actually said on the Senate floor in 1999 that "getting more federal judges is not what I came here to do." Now Republicans reduce President Bush's nominees to stereotypes designed to score points: Janice Rogers Brown, a member of the California Supreme Court and a nominee for the D.C. Circuit Court of Appeals, is a sharecropper's daughter; Justice Owen teaches Sunday school.

The Democrats, after having proclaimed throughout the Clinton years the need for a fair process for nominees, showed no compunction about shifting gears and escalating the conflict -- using not only the procedural tricks that they once denounced but making the filibuster a routine tool in an already degraded process. What's more, they have shown no ability to distinguish between nominees genuinely worth opposing -- such as Justice Brown, whose philosophy really is outside the mainstream -- and conservatives, such as Justice Owen, whose records should not preclude service.

So we root essentially for both sides to lose and the Senate to win -- which is what the nascent compromise would provide for. The nuclear option would effectively circumvent accepted Senate procedures for changing Senate rules and is therefore unacceptable. But the nuclear option's defeat could be seen as legitimizing Democratic filibusters and encouraging future obstruction.

The alternative -- at least in the draft we've seen -- would avoid both traps. It would obligate its Democratic signatories to allow for votes on all but two of the currently stalled nominees -- William G. Myers III and Henry W. Saad -- and refrain from future filibusters except in "extraordinary circumstances." This would rightly reject the filibuster as a day-to-day weapon in judicial confirmation battles. And it would obligate its Republican signatories to oppose the nuclear option as long as Democrats are in "good faith" concerning any future filibusters. The deal is not final and could easily still fall apart. It is, however, the best hope to avert a crisis.

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