Democrats misplay cards in high-stakes filibuster fight

April 29, 2005|By Steven Lubet

THE BATTLE OVER President Bush's judicial appointments is looking more and more like a high-stakes poker game as each side keeps raising the ante while daring the other to go "all in." Senate Democrats seem determined to continue their filibusters of Mr. Bush's most extreme nominees while Republicans threaten to use the so-called nuclear option, simply abolishing the filibuster with regard to judicial confirmations.

In policy terms, the Democrats have the better case. Senate Republicans, after all, were perfectly happy to endlessly stall President Bill Clinton's judicial appointments, so it is hard to sympathize with their newfound enthusiasm for bringing every nominee to the Senate floor.

When it comes to poker, however, the Republicans have thoroughly outmaneuvered their opponents. You would expect the Bush administration to be pretty good at Texas Hold 'Em, but it's surprising how badly the Democrats, led by Senate Minority Leader Harry Reid of Nevada, have played their hand.

First, the Democrats' bluff has been far too transparent. Faced with the prospect of the "nuclear option," they have responded with threats of their own. "Abolish the filibuster," they warn the Republicans, "and we will respond by exploiting arcane parliamentary rules that will bring the Senate grinding to a halt."

Sure, they could throw the place into chaos, but the threat is hollow because they have no intention of fulfilling it until after the Republicans have changed the filibuster rules. But then it will be too late. Once the filibuster is gone, it's gone, and snarling the Senate won't bring it back.

As any card player will tell you, a bluff only works when your current hand appears truly powerful. Threatening to get even is a sign of weakness rather than strength.

So if the Democrats were serious about playing the gridlock card, they would not wait to tangle things up - they would start tomorrow. Blocking a few votes would have immediate consequences for Republicans and, most important, there would be no end in sight. That would be a strong play, not a bluff, and it could set the stage for serious negotiation.

Then we have the problem of "pot odds," which define the relationship between risk and gain. A card player is always more likely to call a raise when the pot is big, because the potential return is better. The higher the payoff, the more you should be willing to bet.

Unfortunately, the Democrats have raised the confirmation stakes - with the unprecedented filibuster of appellate court nominees - to the point at which the pot odds actually favor the Republicans' nuclear option. The more judges who go into the pot, so to speak, the bigger the reward if the filibuster gets busted.

But take heart. This insight actually suggests a resolution to the current impasse. It is within the Democrats' power to lower the stakes by abandoning the filibuster of appellate court nominees (currently state Supreme Court Justices Priscilla Owen of Texas and Janice Rogers Brown of California). That would dramatically change the pot odds for Republican senators - especially the handful of moderates who would prefer to avoid a showdown - by reducing the eventual payoff.

Yes, that would put some woeful right-wing judges on the bench, but they would be confirmed in any event if the Republicans carry through with their plans. However, the filibuster could be retained for future Supreme Court nominees, the biggest prize of all.

Of course, the Democrats could keep all their chips on the table, taking a chance on attracting enough wary Republicans (it would require at least six) to keep the filibuster intact. But that would be gambling, wagering everything on a lucky draw. And you know what the card players say about luck: Depend on a rabbit's foot if you must, but remember, it didn't work very well for the rabbit.

Steven Lubet, a law professor at Northwestern University, is the author of Murder in Tombstone: The Forgotten Trial of Wyatt Earp.

Columnist Clarence Page will return Tuesday.

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