No nukes

April 27, 2005

DURING THE Cold War, when the United States and the Soviet Union had nuclear missiles pointed at each other, there was a powerful deterrent in the doctrine of mutually assured destruction. No matter which country launched its missiles first, both would be wiped out.

Similar logic has typically worked in the Senate, too, to protect the minority from a bullying majority. Senators never know when they might need such protection themselves.

Now some Republicans, emboldened by their years of controlling Congress as well as the White House, seem so confident the pendulum won't swing back they are willing to trigger the parliamentary equivalent of a nuclear war by robbing minority Democrats of their ability to filibuster judicial nominees.

But like its military counterpart, such a conflagration would only produce losers all around and leave the delicately balanced constitutional structure of checks and balances in shambles. The coolest heads in both parties must redouble their efforts to find a way to sidestep this confrontation.

A split-the-difference compromise offered by Democrats to allow the full Senate to vote on some of the disputed judges but not others was rebuffed by Republicans yesterday. Yet if there's a will to reach accommodation, a way can be found.

Danger may not be apparent to the conservative forces demanding that the minority be effectively disarmed for judicial battles. Without Democratic interference, President Bush would have little trouble packing federal courts with the most extreme ideologues he can find, and their lifetime appointments could extend his influence for generations to come.

But what of conservative complaints that the courts are already too independent, too activist, too "out of control"? Couldn't they wind up even more powerful, more independent of Congress?

Conversely, what if the courts become too intimidated by Congress and the White House to exercise their best judgment? Of what value is a justice system in which the bench is filled with toadies, expected to rule on each case in a preordained manner or face impeachment proceedings? While the outcome of such tampering is uncertain, it's clear the constitutional structure of separate but equal branches of government must not be altered.

Even if the prospect of all three branches governing in philosophical lockstep is appealing to those with whom they agree, the country is so evenly divided that such an ideological tyranny would likely provoke a powerful backlash -- perhaps one powerful enough to put the Democrats back in control.

What's particularly worrisome is that the senator with his finger on the nuclear trigger, Majority Leader Bill Frist, seems most driven by his own political concerns. He is leaving the Senate next year after two terms and is believed to be planning a bid for the White House. For him, the calculation is how he can curry favor with the conservative GOP base while not aiming so high that he cannot succeed and looks ineffectual.

Both he and Senate Democratic Leader Harry Reid can best serve their parties and the nation by stepping back from the brink. If the Senate's duty to protect minority rights is affirmed, everyone can declare victory.

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