Senate's 'deal' was not really a big deal

Let no one suppose that the "deal" engineered by the "Gang of 14" (7 Republicans and 7 Democrats) in the Senate last week put to rest either of the related major disputes that have been roiling that distinguished body in recent weeks. The would-be peacemakers labored and brought forth a mouse.

Senate Majority Leader Bill Frist (R-Tenn.) says "The constitutional option" (or "nuclear option," if you prefer) "is still on the table." Minority Leader Harry Reid (D-Nev.) says the deal "took the nuclear option off the table. The nuclear option is gone for our lifetime." As for filibustering judicial nominees, the Gang agreed, henceforth, that will happen only in "extraordinary" circumstances. Yet one of the Democrats, Sen. Richard Durbin of Illinois, has already declared that two of President Bush's nominees "will not go forward," which appears to mean that their nominations qualify as the sort of "extraordinary" circumstances that will trigger filibusters. Since a spokesman for Sen. Frist insists that "we will continue to press for fair up-or-down votes for all nominees," it seems inevitable that the constitutional option will be revived by the Republicans to squelch the Democratic proclivity for frequent attempts at filibustering.

What's left? The Democrats agreed to allow up-or-down votes on three nominees they had vociferously opposed (Priscilla Owen, Janice Rogers Brown and William Pryor), and it seems likely that the Senate will approve all three. The fate of all of the other nominees remains uncertain, pending a decision by the Democrats as to whether the designations of any of them were "extraordinary," and thus qualify to be filibustered. If so, one or more of the seven Republican negotiators may decide to let the Democrats get away with this, and refuse to go along with Sen. Frist's intention to invoke the constitutional option. One such defection might cause it to fail.

I personally would not bet a lot on the political future of any Republican who makes that choice because conservative Republicans, who dominate the party, are not likely to forgive it soon. (Sen. Lindsay Graham of North Carolina, and, perhaps, Sen. John Warner of Virginia are particularly at risk here.) But in any case, the problem is certain to recur when one of the liberal Supreme Court justices (perhaps Justice John Paul Stevens) retires and President Bush proposes a conservative successor. If the Democrats insist upon labeling that selection "extraordinary," regardless of the nominee's judicial qualifications, and launch a filibuster, the fat will be in the fire.

Sen. Frist would, of course, seek to invoke the constitutional option again, and this time his chances of success would be far greater. The Democrats having demonstrated, in the case of the Supreme Court nominee and any previous appellate court nominees who were filibustered to death, that they have no serious intention of limiting their filibusters, it should be easy to assemble 50 (out of 55) Republicans to overpower them.

There has been a lot of talk about who are the "winners" and "losers" as a result of the machinations in recent weeks. Sen. Frist is widely regarded as having lost ground, at least among conservatives, by failing to produce a victory by means of the constitutional option. Sen. John McCain (R-Ariz.) is hailed as the "real leader" of the Senate because he managed to dash in at the last minute and pose (not altogether correctly) as the chief engineer of the vaunted deal. But the truth is that it is simply too early to say who the ultimate winners and losers will be. Almost every issue of importance in the current controversy remains, to date, undecided.

The really important question is the complexion of the Supreme Court, which is almost sure to become an issue in the near future. For the remaining life of the 109th Congress - in other words, until January 2007 - the 55 Republicans who control the Senate can answer that question definitively. The Democrats are playing desperately for time, in the hope that thereafter the composition of the Senate may have changed, at least slightly, in their favor. It is up to the Republicans to move promptly, and decisively.

We learned the lesson about appeasement long ago but some still don't get it. It is easy to give in to avoid tough choices but tough choices have a way of coming back. Those with guts and ethics don't avoid, they confront.

This problem is still to be faced. The present Republicans must show character or be replaced by someone who does. We know the Democrats are like spoiled junior high school brats who will do anything to appear credible. We must act like adults.

It is easy to give in to avoid tough choices but tough choices have a way of coming back. Those with guts and ethics don't avoid, they confront.

Exactly.

We've already been shown (as if we needed to be!) how
much the spirit of the "deal" means to Democrats. Only
shortly thereafter they "filibustered" Bolton and managed
to drag out the Senate hearings and prolong their fishing
expedition by denying an up-or-down vote to him. If
Republicans don't force the constitutional option soon
most of their agenda will be filibustered to death. The
base would have much more respect for them if they'd
attempt to eliminate the filibuster on judicial nominees
and lost while upholding principle than they do now --
acting like the minority party. That's what they'll soon
be if they don't start reading the public mood better.

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