`Extraordinary' filibuster deal puts the squeeze on Democrats

July 06, 2005|By Jules Witcover

WASHINGTON - As Senate Democrats await President Bush's first Supreme Court nomination, they have reason to question their earlier judgment that they scored a victory in the deal that sidestepped Senate Majority Leader Bill Frist's scheme to outlaw the filibuster on judicial choices.

Having given up their option of opposing three conservative appointments to federal appellate courts that were distasteful to them in exchange for reserving the filibuster in "extraordinary circumstances," the Democrats can wonder what they have really gained.

If the president now nominates another conservative to the Supreme Court who is equally distasteful to most Senate Democrats, the chances are they will try to reject that nominee on grounds that the "extraordinary circumstances" exist this time around.

And if that happens, all or most of the seven Republicans who joined an equal number of Democrats in the "Gang of 14" who entered the deal are likely to say the deal is off, and most of the Republicans will back the president's selection.

The Democrats, therefore, are already reduced to wishfully thinking that this conservative president will somehow back down on his promise to pick someone in the extreme right-wing mold of Antonin Scalia and Clarence Thomas.

But this is a president who has never hesitated to go for the gold on any decision, be it invading Iraq to get rid of Saddam Hussein or trying to undercut the Social Security system with his partial-privatization scheme.

One of the leading Senate Democrats who wasn't part of the filibuster deal, Edward M. Kennedy of Massachusetts, wrote in The Washington Post Monday that the retirement of Justice Sandra Day O'Connor gave Mr. Bush "a unique opportunity to unite us." He could do so, he said, by picking a relative moderate like her who could win "a broad bipartisan majority" for confirmation by the Senate.

By truly engaging the Senate in its constitutional advice-and-consent role in advance of naming his choice, Mr. Kennedy argued, the president could avoid an ugly clash of the sort that has occurred three times since Mr. Kennedy has been in the Senate.

In those three cases - the nominations of Clement Haynsworth and G. Harrold Carswell by Richard Nixon and Robert H. Bork by Ronald Reagan - all resulted in rejections. But the obvious difference is that now the Republicans have the numbers in the Senate - 55, more than needed for confirmation in the straight majority vote that Mr. Frist will be pushing.

The "nuclear option" that the Gang of 14 successfully, if only temporarily, averted called for Mr. Frist to end-run Senate Rule 22, which now requires a three-fifths vote, or 60 of the 100 senators, to end debate.

Vice President Dick Cheney, as president of the Senate, would rule that the super-majority was unconstitutional as it pertained to judicial appointments, thus clearing the way for a simple majority to cut off debate on Mr. Bush's first and any future Supreme Court nominations.

Why would Mr. Kennedy or any other liberal or moderate senator think that Mr. Bush, already with GOP control of the legislative branch, would hesitate to name another Mr. Scalia or Mr. Thomas as the next Supreme Court justice?

The seven Democrats of the Gang of 14, having already swallowed the three conservative appellate nominees odious to them after agreeing to oppose others only under "extraordinary circumstances," will be hard pressed to make the case against the next Bush choice.

The seven Democrats had better hope the president names a chicken thief or a corporate extortionist. It may take someone of that ilk to enable them to slip from the straitjacket they so willingly strapped on in agreeing to the terms negotiated by the Gang of 14.

Jules Witcover writes from The Sun's Washington bureau. His column appears Wednesdays and Fridays.

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