Let's make a deal

• Article
• Comments ()
• Click-2-Listen

By

The latest compromise proposal on the question of confirming judges goes like this: A self-selecting group of six senators each from the Republican Party and the Democratic Party agree that: 1) The filibuster rule will not change; and 2) the filibuster will not be used to prevent a floor vote in which there is a Senate majority in favor of the nominee except in the most extraordinary circumstances.

The Washington Post editorialized in favor of this approach last week, and to its great credit, its editorial page has been sincere in acknowledging the extent to which the conduct of Senate Democrats on judges has been novel and unreasonable, foretelling potentially deleterious effects not only in the event that Republicans use their majority to end the filibuster, but also in the routine use of the filibuster to stop nominees. The Post rightly wants to avoid a situation in which the partisan breakdown over judges gets worse. It sees a majority vote to end of the filibuster as exactly such a worsening.

I agree that a vote to end the filibuster of judicial nominees would be an escalation in the partisanship over judges. The problem is how to set right the improper use of the filibuster in the case of the nominees currently tied up without such an escalation.

In the talking-points Democratic version, all this mischief with regard to judges began with the Republicans' abuse of Clinton nominees to the bench in the 1990s. Republicans used their Judiciary Committee majority to knock out judges they regarded as too left-wing. Perhaps even more noxiously, Republicans concocted a theory holding that the federal appellate judiciary was underworked, justifying leaving vacancies open — a theory Republicans promptly abandoned when George W. Bush took office.

Needless to say, this is not exactly the whole story for Republicans, who remember what happened to Robert Bork — he was borked — and what "they" tried to do to derail Clarence Thomas. Cognoscenti also are well aware of the principle-deficient blockage of John Roberts from the D.C. Circuit Court of Appeals during the George H.W. Bush administration, during the last year of which the confirmation process all but came to a halt. Judge Roberts had to wait until 2003 and the administration of Bush the younger to get his seat on the D.C. circuit.

Who drew first blood? It doesn't matter. The point is that each escalation has been seen by the escalating side and presented as nothing more than a reply in kind: an eye for an eye. In fact, we have gone from "a tooth for a tooth" to "a whole upper palate for a tooth," and future generations may come to think that justice is depicted as blindfolded in accordance with the doctrine of "two eyes for an eye."

Can we de-escalate? The Post is quite right that any solution to this problem will likely come from somewhere other than the Senate leadership of both parties. The reason for this is that the leadership, especially but not exclusively on the Democratic side, is paralyzed by each party's activist wing. The milder form is the emerging insistence on the Republican side that the filibuster has to go, regardless, as a matter of principle: It was never intended for use against judicial nominees, and it is extraconstitutional in that it allows 40 senators to block the constitutionally mandated "advice and consent" function. An end to the filibusters currently blocking nominees just might not be good enough. But as a practical matter, I think that if Senate Majority Leader Bill Frist gets votes on the judges currently blocked, the hard-liners will be satisfied.

What I don't see is how any accommodation by the Democratic leadership is possible at this point. The activist wing of the party has talked itself into the proposition that the currently blocked nominees are blocked because they are simply unacceptable — unfit for the bench, regardless of how qualified the ABA says they are, each and every last one of them. When Senate Minority Leader Harry Reid floated a compromise two weeks ago that would let some through, some people on his ne plus ultra wing didn't get the memo that it was just a tactical ploy. They were horrified at the thought that any of los filibusterados would make it to the bench.

Can six independent-minded Democrats and six independent-minded Republicans make a deal? Against the wishes of their leadership and their party's base? Republicans would find such a deal easier to make than Democrats. It gets their judges confirmed and reserves the question of what "extraordinary circumstances" are and the threat of the ultimate sanction, ending the filibuster, in case of abuse. Democrats, on the other hand, have to accept that a group of judges who have become the objects of fear and loathing to those in their party most actively interested in the judiciary will indeed take seats on the appellate bench, where they will be poised for elevation to the Supreme Court.

Maybe, but I just can't see it working out.