There's a great unknown hanging over the Senate impasse on judicial nominations. It's a question no one can answer until the die is fatally cast, and by then it will be too late for the parties to disengage.
The great unknown is the public reaction, both in the short run and in the long. If the Republicans weaken the filibuster to guarantee up-or-down votes for all judicial nominees, will the public care? And if Democrats respond by going to the mattresses, sabotaging Senate deliberations on other nominations, bills and issues, will the public be turned off?
In sum, when the smoke clears (if it every does), which side will have the public's sympathy?
To be sure, the partisans of each will feel that their side was not only right but more reasonable. Neither the die-hard Democrats nor their Republican counterparts, however, represent a majority. Each may account for roughly a third of the adults who are currently conscious of the judgeship debate. It's the leanings of the rest of the public that always make the difference.
When that middle third splits evenly, you get something like the 2000 presidential election (a statistical tie). When this pivotal group leans heavily one way, you get something like the reaction to the congressional intervention in the Terry Schiavo case.
Which model will apply in this instance? Time magazine weighed in this week with a poll saying 59 percent of Americans opposed the "nuclear option," the popular name for changing Senate rules to cut off floor debate with a simple majority vote. That's an eyebrow-raising number, considering that the last really popular filibuster was Jimmy Stewart's all-nighter in Mr. Smith Goes to Washington (a movie that came out in 1939).
In more recent decades, filibusters have more often been associated with obstructionism. The classic case was civil rights legislation, which was delayed for decades by filibusters — real or threatened. This made filibusters unpopular enough that the Senate eventually eased the super-majority needed for cloture (cutting off debate) from two-thirds (67 votes) to just three-fifths (60) in 1975.
That's where we stand today, but it may not be where we stand in a week or two. Senate Republicans say they have the votes to lower the cloture threshold to a simple majority (51) on judgeships. They say they would use this lower threshold only for judges and not for executive appointments, such as cabinet secretaries or ambassadors. But it's not clear how the two differ in principle. If anything, it would seem the higher standard of 60 votes would be most important for federal judgeships, which are lifetime appointments.
Some wonder whether such a rules change, once accomplished, would not kill the filibuster altogether. You could ask the same question about the two-thirds majority that's been required to change the rules. If it doesn't apply here, where does it?
Senate Majority Leader Bill Frist has said he wants 100 hours of debate on two of the blocked judicial nominees. Surely, he will say, that's enough time to talk about two people. Then, he will say, it will be time for a vote.
The Democrats will say no, and await the consequences. Then the Republicans will try to force a vote with a simple majority, and await the consequences. Right now, we simply do not know what those consequences may be.
It's entirely possible that whoever wins the immediate test will suffer the most down the road. The Democrats could hold the line, keep the right to filibuster intact and block some of President Bush's nominees — only to be seen as obstructionist and unfair. The Republicans could stand together, bend the Senate to their will and push through every judge the president ever thought about appointing — only to be seen as heedless and high-handed.
The Time poll may comfort those Democrats who are uneasy about defending the filibuster and loath to be cast as obstructionist. But it should not comfort them too much.
First, all polling is inconclusive on issues such as this because much of the public does not tune in for batting practice. Until the scoring is for keeps, it's all a hypothetical.
Second, on issues such as this, poll respondents often answer the way they're led by the question, or the questioner. For example, while majorities of Americans say they don't want to change Senate rules to please the Republicans or the president, similar majorities say they favor giving every judicial nominee an up-or-down vote. The latter formulation appeals to a basic sense of fairness. Poll respondents tend to think of themselves as fundamentally decent, fair-minded folks — just like the rest of us.
But once the judgeship debate is truly joined, we can expect to see the ball take some funny bounces. There is too much riding on this struggle for it to be otherwise.
Everyone knows the battle is not about the seven current appeals court vacancies. It is about the scores of such vacancies yet to come. And most of all it is about the next Supreme Court vacancy, and the ones to follow.
But there's a stake here even larger than the entire court. The filibuster is not ultimately about the right to talk — it's about the minority party's right to block a vote. That's true whether the issue at hand is a judge, an ambassador or a bill that the minority considers egregiously offensive. This is the minority's last resort, their last shot at making a difference. Without it, the president has no compelling reason to negotiate with anyone outside of his political base.
In this sense, the implications of this supposedly procedural debate could not be broader. On this level, the outcome of this debate may be critical to Mr. Bush's entire second term in office.