A Judicious Compromise
David Broder suggests a possible compromise over the judicial fight that’s threatening to shut down the Senate.
A Judicious Compromise (WaPo, B7)
Here is what should happen: The Democratic Senate leadership should agree voluntarily to set aside the continued threat of filibustering the seven Bush appointees to the federal appeals courts who were blocked in the last Congress and whose names have been resubmitted. In return, they should get a renewed promise from the president that he will not bypass the Senate by offering any more recess appointments to the bench and a pledge from Republican Senate leaders to consider each such nominee individually, carefully and with a guarantee of extensive debate in coming months.
Why should the Democrats be the first to step back from the abyss of the “nuclear option,” the possible rules change that would eliminate all judicial nomination filibusters and thereby make confirmation possible with 51 — not 60 — votes?
The principled answer is that elections matter. Voters placed Republicans in control of the White House and the Senate, and while the opposition still has a constitutional role to play, at the end of the day that function has to be more than talking important matters to death.
But there are also practical reasons for the Democrats to take this path. Their tactical position is weak. The Judiciary Committee cleared two more nominees last week. The Republicans — with Vice President Cheney in the chair — could well muster the 51 votes needed to change Senate rules and abolish judicial filibusters. If that were to happen, Democrats have said they would use every rule and procedure available to them to bring the work of the Senate to a halt.
Building such a roadblock to consideration of such important legislation as energy, Social Security, welfare reform and the routine financing of government would bring down deserved public condemnation, and the mighty megaphone of the White House would ensure that Democrats took the brunt of the blame. Democrats need to remember what happened to Newt Gingrich when he shut down the government for a few days in 1995 in a budget dispute with President Bill Clinton. It was not Clinton who lost public support.
In addition, if the judicial filibuster were ended by a vote of the Senate, it would vanish entirely. By yielding the right to filibuster these specific court appointees, the Democrats could deny the Republicans any immediate pretext for changing the rules — and preserve the possibility of a filibuster should Bush later submit someone they find seriously objectionable for a vacancy on the Supreme Court. The leverage they relinquish today might be much more important to them tomorrow.
Something along these lines makes sense, even if it’s unlikely in the current climate. Less than twenty years ago, Antonin Scalia was confirmed to the Supreme Court by a unanimous vote (98-0). There should be a bipartisan consensus that highly qualified judges whose ideology aligns with that of the president should be confirmed absent serious ethical considerations.
The routine filibuster, or threat of same, of political appointees turns the system of its head and actually weakens respect for the Senate as an institution. The advise and consent power is a necessary check and sometimes stops the confirmation of a candidate who would not have been nominated if properly vetted–say, a Lani Guinier. But if a mainstream nominee like Bill Pryor can be filibustered to death, then it’s hard to take the opposition seriously when there is genuine cause for concern.