The Filibuster Question Is Off the Table, for Now, but the Really Big Nomination Questions

A near miss

The filibuster question is off the table, for now, but the really big nomination questions still await

Wednesday, May 25, 2005

The Republicans had within their grasp a victory of principle that some of their number feared ultimately could have cost them their Senate majority; the Democrats faced losing the last twig they could use to slow what they see as a torrent of conservative-minded judicial nominees flowing from the White House, just as it becomes almost certain that the crest of that flood - a Supreme Court vacancy or two - is about to arrive.

What better time for a deal?

So seven centrists from each party - enough votes to carry the issue for either side - sat down with dictionaries and copies of the Federalist Papers and cobbled together what amounts to a cease-fire document: They will allow votes on three of President George W. Bush's long-delayed nominees (so Republicans can collect their wounded) and won't commit to a vote on two others (giving Democrats time to reload).

As for the future - defined as the 19 remaining months of the 109th Congress - they will support filibusters of nominees only under "extraordinary" circumstances. Now, Webster's defines that word as "not according to the usual custom or regular plan," but the compromise leaves it to each signatory to use "his or her own discretion and judgment in determining whether such circumstances exist."

As a definition, that is nothing short of, well, extraordinary. It keeps the filibuster in the Democrats' arsenal and gives Republicans sufficient cover to toss out the paragraph that commits them to opposing any changes to the filibuster rule. As Ohio Republican Mike DeWine, one of the compromising centrists, told the New York Times, "we, of course, reserve the right to do what we could have done tomorrow."

Before many tomorrows pass, that reservation may well come into play; the sighting of Chief Justice William Rehnquist, ill with advanced thyroid cancer, being wheeled into the Capitol medical department on Monday reminded all of what is truly at the core of this filibuster fight: the philosophical viewpoint of the Supreme Court. Should Rehnquist retire at the end of the court's term next month, as some court-watchers suspect he will, Bush would have at least one opening to fill; should he nominate a chief from among the justices now sitting, he would have two opportunities to move the court to the philosophical right.

That is the battle ahead of which both sides now seek the high ground - and one in which the nation would be well-served should both the Senate and the White House pay heed to the last paragraph of this week's compromise. Consulting Federalist Paper No. 66, Alexander Hamilton's effort to footnote the Constitution, the centrists agreed that the "advice" in the "advice and consent" clause speaks to consultation, for some time now absent, between the president and the Senate before a nomination is submitted. Such consultation would in no wise guarantee either an acceptable nominee or an unobstructed confirmation process, but it would be a step, however small, toward restoring comity where enmity now holds sway.