Judgeship jousting

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Students of American politics are about to witness a real battle royal in the Senate. The use of the filibuster is the issue. We are not talking about the filibuster as used by Southern Democrats to preserve segregation. That filibuster was the parliamentary standby resorted to by Democratic reactionaries for much of the 20th century.

This filibuster is the parliamentary standby resorted to by liberal Democrats. They use it to preserve not segregation but rather judge-made law. They are the reactionaries of the 21st century.

In the federal system of government, created by our Constitution, the legislature makes the law, the president executes the law, and the courts judge whether the law is constitutional. Yet as the Democrats' power in legislatures all over the land has slipped into minority status, they have increasingly favored the courts to make law. That is not very democratic, but then neither was segregation. In the Senate today Democrats comprise the minority just as Southern Democrats once did. Thus like the Southern Democrats they must resort to the filibuster.

Not surprisingly the liberal Democrats use the filibuster to preserve a form of governance as antithetical to the Constitution as segregation once was, that is to say, judge-made law. Increasingly laws made in the legislatures have reflected the wishes of the growing American majority, the conservative majority. Judge-made law is the law of the Democratic minority. The battle royal we are about to see in the Senate is essentially about whether the Democrats can continue their rearguard action against progress or, to use another of the words liberal Democrats have long thought they held the franchise on, change.

Senate Majority Leader Bill Frist is ready to end the impasse over seven of the president's judicial nominees in the Senate. They are held up by the Democrats' threat to filibuster against them. A filibuster takes 60 votes to shut off. Mr. Frist is threatening to pass a parliamentary rule barring filibustering against judicial nominees. Creating that rule will require only 51 votes, which he believes he has. There is talk from some senators such as Sen. Trent Lott, Mississippi Republican, that a compromise is advisable. But no compromise is possible.

Control of judicial nominations is the Democrats' last means of making policy in this increasingly conservative country. They are unlikely to control Congress for years to come. In the national vote for the presidency, they seem to come close to beating the Republicans. But consider the mediocre field of potential presidential candidates they have for 2008. With a field led by such a polarizing figure as New York's Sen. Hillary Rodham Clinton, they are unlikely to win the presidency. In the weeks ahead, the Democrats will fight to the end for the filibuster. It is all they have.

The Republicans have been preparing for the fight for weeks. They have gotten essential legislation out of the way. The Senate is about ready for the battle over the filibuster, and the Republicans will either fight it as vigorously as the Democrats defend it or will let the Democrats dictate the shape of the federal judiciary. Frankly, I doubt Mr. Lott can work out a compromise. The looming openings on the Supreme Court make Republican compromise impossible. At the end of the Supreme Court's session, probably in mid-June, the chief justice might well retire. By the end of the summer there could be two vacancies. By the time Supreme Court vacancies open, the filibustering of judicial appointees must no longer be possible. Surely all Republicans know this.

Thus, my fellow political connoisseurs, pull up a chair. Prepare for the fireworks. The 527 committees of both parties have already been preparing the debate. If the liberal Democrats lose this one, their fate is sealed. If the Republicans lose, the judiciary remains in reactionary hands a while longer. My guess is the Republicans will win.

R. Emmett Tyrrell Jr. is editor in chief of the American Spectator, a contributing editor to the New York Sun, and an adjunct scholar at the Hudson Institute. His most recent book is "Madame Hillary: The Dark Road to the White House."