- The Washington Times - Thursday, May 26, 2005

Senate Democrats hung tough and the Republicans wimped out. The Republicans had the votes but not the guts. That is the bottom line on the compromise agreement that will allow votes to proceed on judicial nominees without a filibuster, except in “extraordinary” cases. In other words, the Democrats will filibuster only when they feel like filibustering, since they will define what “extraordinary” means to them.

Though the Republicans have more votes in the Senate, and also have Vice President Dick Cheney to cast the deciding vote in case of a tie, the Democrats stuck together. None of them went around wringing their hands in the media about how hard it would be for them to support their party if it came to a vote.

Unity often beats disunity, even when the unified side is smaller. This is not a unique situation. Democrats have long understood they are in Washington to represent the people who voted for them. Too many Republicans seem to think they are in Washington to make deals with the Democrats.

Some people welcome all compromises, domestic or international, on grounds that these compromises “ease tensions” and “avoid confrontations.” You can always ease tensions and avoid confrontations by surrendering. You can always postpone a showdown, even when that simply lets the problem fester and worsen.

Some Republicans may take comfort that they still have the option of changing the Senate rules in the future if the Democrats violate the spirit of their deal. But, once you had the votes to win and wimped out instead, there is little reason to think the weak sisters and opportunists on your side will be with you the next time high noon rolls around.

While members of both parties are trying to put a good face on this political deal and the media have gushed about this “bipartisan” agreement, Iowa Republican Sen. Charles Grassley was one of the few who called a spade a spade, characterizing what happened as Republican “unilateral disarmament.”

If only the Republican Party lost in this confrontation, that would be a minor partisan matter. But it is of major importance that the American people lost a golden opportunity that may not come again in this generation. That opportunity is — or was — to set in concrete both the Senate’s right to vote on judicial nominees and the American people’s right to govern themselves, instead of being ruled by judges who increasingly take decisions out of the hands of elected officials and impose their own personal policy preferences.

It is not just a question of the merits or demerits of particular issues and decisions by the courts. The most fundamental decision is: Who is to decide? For more than 200 years, Americans have fought and died for Democratic self-rule.

People who say the Senate compromise will enable Congress to get back to the “real” issues seem to think that whether the voters’ votes become increasingly futile in a judge-ruled world is less important than deciding what kind of goodies the federal government hands out.

In the short run, the Senate compromise on judicial nominees seems to give everybody something. The Republicans will be able to get a vote on three nominees — Priscilla Owen, Janice Rogers Brown and William Pryor — people who represent the view judges should enforce the laws passed by elected officials.

Fine. But many more such judges need to be put on the federal courts, including the Supreme Court, to change the current pervasive judicial activism. Is that likely now?

The net effect of the Senate compromise is that this president and future presidents will be pressured to choose nominees who can be confirmed without rocking the boat.

That is how conservative Republican presidents in the past loaded the Supreme Court with liberal judicial activists from William J. Brennan to David Souter and wobbly justices like Sandra Day O’Connor and Anthony Kennedy.

Somebody has to stand up for an end to this trend. As Ronald Reagan used to say: “If not us, who? And if not now, when?”

Thomas Sowell is a nationally syndicated columnist.

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