Filibuster Fight Might Move to High Court Nominee

On the eve of its internal crisis over President Bush's judicial nominations, the Senate has come to its senses and sought a compromise. But what has happened may be only a delay in the day of reckoning.

The crisis staved off by a centrist group of 14 senators at the eleventh hour could return at any time. And the likely cause of its rekindling is the anticipated retirement of Chief Justice William Rehnquist in a matter of weeks.

The crisis will return in part because the interest groups that pounced on the issue of judicial nominations this year found it was a great way to both demonstrate and sustain their influence. For them, the campaign of 2004 never ended and the campaigns of 2006 and 2008 have already begun. Finding a hot topic in Washington enables such activists (and the journalists who love them) to hook at least some of the rest of America on their obsession.

But the larger reason the crisis will return is that its fundamental question has not been answered. The Senate has yet to establish whether the minority party can be prevented from filibustering judges who have made it through committee to the floor of the Senate. And that means the question of a filibuster on a Supreme Court nominee remains open.

Democrats say the agreement signed late Monday by seven of their senators and seven from the majority Republicans guarantees their right to filibuster a Supreme Court nominee whom they regard as beyond the pale. But Republicans say there's no such guarantee, just an agreement to allow filibusters while the Democrats are on good behavior.

That means the seven Republicans have only agreed to oppose the "nuclear option" (stripping the minority of its filibuster weapon) so long as Democrats respect the limitation in the agreement, which says filibusters may be allowed only "under extraordinary circumstances."

How many of the 14 signatories will agree on what constitutes extraordinary circumstances? Put it another way: How many of the 14 will approve of President Bush's choice to succeed Rehnquist?

Would the nomination of Supreme Court Justice Clarence Thomas have constituted extraordinary circumstances? The hearings and votes on Thomas convulsed the nation for weeks in the fall of 1991 and generated much of the energy for the elections of 1992.

And what about the wild battle over Robert Bork's nomination in 1987, which began the current cycle of partisan revenge on the judicial nomination front? Bork's defeat was a stunner because he was nominated by President Reagan, who had easily won confirmation of his three previous high court moves: appointing Sandra Day O'Connor and Antonin Scalia and promoting Rehnquist from justice to chief justice). The repercussions and resentments from the Bork fight could still be felt reverberating in the Senate debates leading up to the expected showdown this week.

In the meantime, there will be plenty of talk about winners and losers in the latest round of judicial smackdown.

Some of the liberal organizations that opposed the nuclear option as well as the controversial jurists in question were quick to claim victory. That's smart politics. Even if you gave up some seats on the appellate bench, you can say that you and your minority rights survived to fight another day. And you can get started on the next funding appeal.

James Dobson from Focus on the Family chose to go the other way, denouncing the agreement as a "a complete bailout and a betrayal by a cabal of Republicans." This will keep the pot boiling and the money flowing on Dobson's side of the divide, also serving notice on conservative senators that apostasy will not be tolerated.

In the Senate, the making of a compromise in the midst of meltdown was a victory for the dogged efforts of a few. Republican John McCain showed once again he has his own compass and his own view of what the Republican Party should be doing with its time in power. Ben Nelson of Nebraska, the Democrat who kept at the negotiating knot through weeks of frustration, was also important.

In the end, most Senate observers thought it would come down to the relationships between senior members: committee chairs and ranking members who wanted to get something done besides the judgeship war. John Warner of Virginia, the Republican chairman of Armed Services, and senior Democrat Robert C. Byrd of West Virginia, ranking on Appropriations, provided the final push and the lubricating language to make the agreement click.

If these senators had their standing enhanced, what can one say about Senate Majority Leader Bill Frist? The emergence of this compromise constituted a subtle, silent and bipartisan rebellion against the Republican leader. More to the point, the rebels rejected Frist's insistence that the Senate give the president precisely what he wanted and nothing less.

By tradition, the majority leader's job is to find the sense of the Senate and make the deal that lets the Senate work its will. This Frist clearly failed to do. We now know there was a deal available, and he failed to make it.

In fact, Frist has defined his job differently, as the instrument of the White House and the GOP's political activists. It turns out his colleagues were not all willing to follow in that direction, and at least seven were willing to make the break in public.

For its own part, the White House got out front early in the spin cycle, saying the president had won up-or-down votes on three of its previously blocked nominees to the federal appeals bench: Priscilla Owen, William Pryor and Janice Rogers Brown. That's progress, as the White House spokesman said, making the traditional half-a-loaf argument. From a hard-nosed perspective, the other nominees who will not get up-or-down votes in this round can be considered casualties of war.

The spelling out of the "extraordinary circumstances" standard might also be considered a victory for the president, if you consider that the previous threshold for a judicial filibuster was "because we can."

But the real test of how the White House fared and what it learned will come when Rehnquist or another justice retires. Republican Sen. Lindsey Graham of South Carolina signed the agreement and said it means "the White House will listen to us" when that high court vacancy occurs. If so, then it will have been a meaningful breakthrough indeed. If not, it is merely a timeout.

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