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'Watch Those Guys'

By E. J. Dionne Jr.
Tuesday, May 24, 2005

No one was more relieved last night by the deal that avoided the end of Senate's right to filibuster judicial nominees than Arlen Specter.

The senior Republican senator from Pennsylvania began his political life revering John F. Kennedy and proudly declared himself a "Kennedy Democrat." The foundation of his career was the idea of checks and balances.

In the late 1960s, Specter decided that party loyalty could ask too much. Despite his Democratic leanings, he accepted the Republican nomination for district attorney in Philadelphia. He was running against a Democratic machine that was, as Specter once put it, "highly suspect if not demonstrably corrupt."

Along with Tom Gola, a legendary basketball star whom the Republicans ran for city comptroller, Specter argued that the citizens of Philadelphia desperately needed the minority party to have some power to curb the abuses of the majority.

Their brilliant slogan, one of my favorites: "We need these guys to watch those guys."

There could be no better argument for preserving judicial filibusters. That's why a substantial group of Republicans led by Sen. John McCain joined with moderate Democrats last night in a compromise that will keep the right to filibuster alive.

The "nuclear option" was a problem not only because it meant reducing the power of Senate Democrats but also because it substantially reduced the ability of the Senate as a whole to challenge presidential judicial appointees. That capacity gives the Senate, currently the most middle-of-the-road of the elected branches of the federal government, the ability to exercise a moderating influence on the president's judicial choices.

The nuclear option to blow away the minority's rights promised a huge and unprecedented expansion of presidential control over the judiciary. The Republican compromisers decided that they needed to exercise some control over "those guys" in the White House. They also know they will welcome such influence when the Democrats take back the White House, as they will some day.

Senate Majority Leader Bill Frist and other Republicans who backed the nuclear option hurt themselves badly with shameful rhetoric suggesting that murder and mayhem, not honest differences, were at the heart of this battle.

Thus did Frist accuse the Democrats of wanting to "kill, to defeat, to assassinate" President Bush's nominees. Oh, my. That's what comes out when a Princeton graduate plays the role of counterfeit populist in pandering to the Christian right.

Frist is waging this fight because he wants to be president and needs support from social conservatives. But especially in a time of terrorism, politicians worthy of the presidency don't toss around the word "assassinate" with the alacrity of a small-market radio host. The Republican moderates knew this.

Then there was the comment from the other Republican senator from Pennsylvania, Rick Santorum. Senate debates routinely produce tortured metaphors. But in arguing that Democrats had no right to demand that Republicans follow the standard rules in changing the Senate's filibuster procedures, Santorum hit new heights of weirdness.

Here's what Santorum said: "The audacity of some members to stand up and say, 'How dare you break this rule,' that's the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city. It's mine.' This is no more the rule of the Senate than it was the rule of the Senate before not to filibuster."

Huh?

Santorum later insisted that his words were "meant to dramatize the principle of an argument, not to characterize my Democratic colleagues." Gee, thanks for that.

Oh, yes, and although he is not a senator, Pat Robertson certainly speaks for the constituency to which Bill Frist was pandering. When ABC News' George Stephanopoulos asked him, "How can you say that these judges are a more serious threat than Islamic terrorists who slammed into the World Trade Center?" Robertson replied: "I think the gradual erosion of the consensus that's held our country together is probably more serious than a few bearded terrorists who fly into buildings."

The authors of the Monday night compromise rejected such extremism.

The deal is not perfect. There are grounds to worry that the federal judiciary will be dominated at the end of the Bush years by a certain style of conservative -- Janice Rogers Brown is representative -- ready to roll back the New Deal jurisprudence of the last 70 years. Many who buy this legal approach preach that federal rules on wages and hours, environmental and business regulation, should be overturned by courts that would use 19th-century standards to void Washington's capacity to create rational standards for a complex 21st-century economy. Stopping such a judicial takeover would justify filibusters.

But for now, at least, the principle of Senate scrutiny of judges has been preserved. We will continue to have these guys to watch those guys.

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© 2005 The Washington Post Company