In any successful deal achieved at the 11th hour, everyone tends to feel that they have surrendered too much. In the Senate compromise over judicial nominations and the filibuster rule, the only certain losers are those who would be satisfied by nothing less than total victory and absolute domination.
That category includes not only the leaders of the religious right-who demanded the “nuclear” obliteration of legislative traditions in their pursuit of judicial theocracy-but the White House political strategists who have schemed to neuter the Senate.
How can the magnitude of their loss be determined? One crude but useful measure of political frustration on either end of the spectrum is how loudly the defeated whine and wail.
Liberals are certainly dissatisfied, but they understand the importance of the filibuster in battles yet to come. They also know that Senate Minority Leader Harry Reid of Nevada had no way to be sure of enough Republican votes to defeat the “nuclear option.” Indeed, legislators can craft such sausage-like compromises only when nobody is sure how the final vote will go down-and when the uncommitted prefer not to cast a vote for either side.
So while the left may grumble, the decibel level on the right sounds far higher-and the conservatives are screaming in chorus.
James Dobson, the Christian rightist who mobilized his millions of Focus on the Family followers behind the “nuclear option,” issued an angry statement denouncing the compromise as “a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats …. We share the disappointment, outrage and sense of abandonment felt by millions of conservative Americans who helped put Republicans in power last November.”
Paul Weyrich, a leading activist on the religious right for more than 30 years, echoed that sentiment. “Conservatives are going to be outraged over it,” he lamented. Of course, they are always outraged, even when they win, but this time they have reason to feel burned.
They may not accept the theory of evolution, but they can still count. If the Senate compromise unfolds according to plan, only three of the original 10 Bush nominees whose Appellate Court nominations were stopped by Democratic filibusters will ever sit on the federal bench.
While Janice Rogers Brown, William Pryor Jr. and Priscilla Owen all hold deplorable views, the confirmation of three ultra-right judges is a preferable outcome when the realistic alternative was 10 or seven (the remainder held up by filibuster after three nominees had been withdrawn earlier by the White House).
Yet the White House spokespersons reacted according to the administration’s sole ironclad principle, which is to behave as if they are winning even when objective data suggest otherwise. They are always in the process of creating their own reality, so they declared that getting an “up or down” vote for three of their 10 nominees is a “positive development” and promptly changed the subject.
They’ve already forgotten-and they want the rest of us to forget as well-that the White House favored the “nuclear option,” and that the Vice President was prepared to cast the deciding vote himself in overturning the filibuster rule.
Behind the blustering confidence, however, George W. Bush and his advisors must know they’ve suffered a sharp setback that may become the turning point in his second term.
More important than the number of judges confirmed or even the survival of the filibuster rule is the Senate’s decision to reassert its constitutional independence from the White House. From the moment that Senate Republicans replaced Trent Lott of Mississippi as Majority Leader with Bill Frist of Tennessee-in a move widely attributed to Bush advisor Karl Rove-the upper chamber has been diminished in stature and importance.
The new Senate chief, whose ambitions exceeded his competence, seemed too eager to please whoever might promote him, notably Mr. Rove and Mr. Dobson. His tinny pronouncements about the Constitution and the traditions of the Senate impressed no one-and his older, wiser colleagues have now publicly humiliated him.
From today forward, as Senator Lindsey Graham, a Republican from South Carolina, pointed out, the White House will be obliged to “consult” with members of both parties before they send up judicial nominees, including anyone nominated to the Supreme Court if and when any of the current justices steps down. Having assumed that the Senate existed to do its will, the Bush administration has been notified instead that it will now operate under constraints imposed by the Democratic minority and the Republican moderates.
The “nuclear option” represented an assault on the structures that make self-government possible in a large, diverse and sharply divided nation. This was an ideological minority’s attempt to exploit the Senate-where small rural states enjoy disproportional weight-and seize absolute power. In the name of the Constitution, they tried to rip down the barriers to factional domination that were erected by the nation’s founders.
Their defeat is democracy’s victory.