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.
