The Uncompromising Mr. Bush

Before good-government types go all weak in the knees about the Great Filibuster Compromise of 2005, they might do well to recall the Great Filibuster Compromise of 2004.

Don't remember that one? That's understandable: It didn't change anything.

That deal, which was reached last May, guaranteed up-or-down votes on 25 Bush judicial nominees in exchange for a promise that the White House wouldn't bypass the Senate by making any more of those dastardly recess appointments to the bench. Those 25 judges were confirmed, bringing President Bush's total to nearly 200, in line with other recent presidents. According to a 2003 report from the Congressional Research Service, Ronald Reagan had 163 judges confirmed in his first term, Bill Clinton had 200 and Bush's father, in his only term, won approval for 191 of his judicial nominees.

But the compromise had no real effect at the other end of Pennsylvania Avenue. Bush simply pressed ahead last year with his intention to put his stamp on the federal judiciary, naming the same kinds of conservatives after the 2004 deal -- and after his re-election -- as he had before. Sometimes he renominated the very same people who had been turned down earlier, reviving antagonisms with Democrats.

If anything, Bush redoubled his efforts, spurred on by the election campaign and the fight over gay marriage. "This difficult debate was forced upon our country by a few activist judges . . . who have taken it on themselves to change the meaning of marriage," he declared in his weekly radio address last July 11. Then he went off to a wedding -- of the very traditional kind -- in Georgetown. During that same week, he journeyed to Michigan to publicize the fact that all four of his nominees to the appellate courts from that state had been waiting two years for a vote; three were still awaiting action by the Senate Judiciary Committee.

What's to stop Bush from following the same course this year? Not much. Last year's compromise is a vague memory because it failed to alter any of the dynamics between the two sides of a philosophic divide that last week brought the Senate to the brink of a standstill.

There are, in fact, plenty of reasons to believe that the latest compromise will meet the same fate as the compromise of 2004. For starters, the White House is not a party to this deal, and White House support for it has been lukewarm, even noncommittal. That's significant because Bush doesn't appear to fear a showdown. Nor are the musty customs of the U.S. Senate at the top of the list of this president's priorities.

While Bush may not be a signatory to the deal, he can certainly blow it up. An acutely conservative Supreme Court candidate -- or a round of ultra - conservative appellate nominees -- would force Senate Democrats to figure out what they mean by that imprecise term of art, "extraordinary circumstances," which are supposed to be the prerequisite for future filibusters on judicial appointments. And, assuming Democrats turn to a filibuster at some point, that would test the allegiance of the Senate's moderate Republicans to a hallowed congressional tradition that would restrain the power of a president at a time when the president is from their own party.

These judicial fights have this tit-for-tat quality, which is understandable, but which leads, inevitably, to escalation rather than sober compromise. Democrats talk a lot about Bill Clinton's derailed judicial nominees. Republicans trump every such conversation with a card marked "Robert Bork."

There are practical reasons for Bush to lie low on this for a while. On Thursday, the Senate's GOP majority failed to shut off debate on U.N. ambassador designee John Bolton, postponing a decision until June -- and the White House wants that up-or-down vote. In addition to various appropriations bills pending in Congress, the administration is hoping for action on Social Security changes, a sweeping transportation bill and an energy bill this year -- all of which depend on Senate action.

Ultimately, however, the president will be back with more judicial nominees that will rankle the Democratic caucus, as well as liberal interest groups. The toughest test will arrive if and when it comes time to appoint a Supreme Court justice. This president does not publicly disparage his father, but his aides have made it clear that even if he has to go to the mat he will be sure not to appoint another David Souter, who was picked by the elder Bush and who has turned out to be more liberal than expected.

What the newly formed Gang of 14 will do then -- or even whether that ad hoc group that put together last week's compromise will stay together -- is anybody's guess. One member of the merry band, West Virginia Democrat Robert Byrd, may have crowed after the compromise, "We have kept the Republic!" But a more typical Democratic sentiment was expressed by North Dakota's Byron Dorgan, who termed last week's compromise "legislative castor oil" that only delays an inevitable and costly Senate showdown.