THE FILIBUSTER BOX

The only way for Republican leaders to restrict the use of the filibuster on federal judicial appointments is to break their own rules. If they are willing to do that, the Senate, traditionally the house of thoughtful debate with consideration for minority views, would become the servant of the White House whenever the majority exists in both. This is a profoundly unsettling potential, one that senators with a respect both for the institution of the Senate and the checks and balances within government should work to avoid.

President Bush has placed 205 judges to the federal courts, a 95 percent confirmation rate. But winning 95 percent of the time – that is, allowing that the minority may have a point even 5 percent of the time – apparently is repugnant to the GOP, which wants to strip away the power of the minority to filibuster. They want to do this, they say, because all nominees deserve an up-or-down vote by the full Senate. But this is a weak argument because the filibuster exists, and has existed and been respected, precisely because a minority did not have the votes to stop the majority from getting what it wants. The filibuster, if used wisely – which means rarely – is a tool of compromise and an important means for calming the fervor of the majority.

Democrats have used it often because they could not stop judicial confirmations the way majority Republicans did during the Clinton administration, in committee. And while their rejection of several nominees was understandable, the voting public’s embrace of conservatism is undeniable and senators shouldn’t be surprised to find that philosophy in the judicial nominees.

To end the filibuster for the judicial votes is to amend the Senate’s cloture rule, Rule XXII, which allows at least 41 members to continue debate on certain issues. To end debate on amending that rule, the rule itself says, “the necessary affirmative vote shall be two-thirds of the senators present and voting.” Precedent notwithstanding, Majority Leader Bill Frist intends to ignore that standard and accept a simple majority vote to end filibusters on judicial confirmations.

Majority Leader Frist may not have even 50 votes to do this. Moderate senators, such as Maine’s Susan Collins and Olympia Snowe, are leaning against or are opposed, and conservative senators, such as John Warner of Virginia, are doubtful. But whether the votes are there or not, Republicans should not want to be the party of rule-breakers, just as Democrats should not want to be the party of obstruction via filibuster.

If there is a way out of this, it may be with reconsidering the rule on the two-thirds vote. Following the rule would ensure Republicans lose the vote but be able to respond to the interest groups pressuring them to hold the vote. To secure that agreement, Democrats would have to give up something too – such as letting some appellate-level nominees through without a fight. The moderate middle of the Senate certainly could come up with a compromise that benefits both sides.

The current path toward a vote helps neither and harms the Senate. It’s not a place that either side should want to remain in.