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The Center Holds

Tuesday, May 24, 2005

THERE IS NO guarantee that the cease-fire in the judicial nominating wars negotiated by 14 U.S. senators and announced last night will stick. How could there be? But the agreement by seven Republicans and seven Democrats, with Virginia's John W. Warner (R) playing a leading role, nonetheless is a great achievement. It is a demonstration, in an era of increasingly bitter partisanship, of what can still be accomplished through negotiation and the proffer of a modicum of trust across the aisle. Interest groups on both sides railed against compromise and threatened its architects; Senate leaders of both parties and the president did more to obstruct a deal than to facilitate it. The 14 senators nonetheless managed to put principle above self-protection.

"The first question that most of the media are going to ask us: Who won and who lost?" said Sen. John McCain (R-Ariz.), one of the 14. "The Senate won, and the country won."

The Senate had been poised today to vote on the "nuclear option," which would have eliminated the ability of the minority -- Democrats now; who knows in the future? -- to use the filibuster against judicial nominees. Instead, the Bipartisan Fourteen signed a memorandum of understanding that commits the Democrats to allow up-or-down votes on three of President Bush's most controversial judicial nominees; filibusters against two others will be permitted. The Democrats also pledged to refrain from future filibusters except under "extraordinary circumstances." The Republicans in return pledged to oppose the nuclear option.

The agreement couldn't foresee all contingencies, and it does not. But it de-escalates a crisis stoked by years of misbehavior on both sides. Republicans used procedural tricks to stall and block President Bill Clinton's well-qualified judicial nominees, and then they pronounced such tricks unacceptable once a Republican was in the White House. Democrats touted the virtues of prompt up-and-down votes until they fell into the minority. Democrats overused the filibuster, in defiance of tradition. Republicans were poised to do even more damage: Although the Senate requires that its rules be changed by a two-thirds vote, the nuclear option would have been a brute-force procedural trick by which a bare majority could change the rules to suit its purposes. This would have set a dangerous precedent, allowing any majority to trump long-standing rules in the pursuit of a transient end.

The deal is admittedly messy. Some nominees get votes, some still don't; the principle isn't terribly clear. It isn't specified what constitutes "extraordinary circumstances"; the members have to trust in one another's good faith. But the deal is far better than the alternative.

Even with the immediate crisis past, future cases will test the commitments these senators have made. For this reason, the last section of their memorandum warrants particular attention. The senators there offer Mr. Bush a suggestion that would smooth the way for future nominees. "We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting" nominees, they write. That's advice Mr. Bush, who has long eschewed the steps he could take to deescalate tensions, ought now to heed -- particularly coming from so many key members of his own party.

Now, for the record, here are the 14. The Republicans, in addition to Mr. Warner and Mr. McCain, are Sens. Olympia J. Snowe and Susan Collins of Maine, Mike DeWine (Ohio), Lindsey O. Graham (S.C.), and Lincoln D. Chafee (R.I.). The Democrats are Robert C. Byrd (W.Va.), Joseph I. Lieberman (Conn.), Ben Nelson (Neb.), Mark Pryor (Ark.), Mary Landrieu (La.), Daniel K. Inouye (Hawaii) and Ken Salazar (Colo.).

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