The Judicial Selection Wars: How a Truce Could Be Fashioned

President Bush should pledge not to alter the court's balance. Democrats should agree to stop the filibusters

Republicans and Democrats are nearing the brink of nuclear warfare over President Bush's judicial nominations. Unless both sides compromise, the damage to the government and the nation could be profound. Hostilities have raged on and off since the 1987 Battle of Bork, resulting in a downward spiral of partisan bitterness and recriminations. The latest and biggest escalation has been Senate Democrats' all-but-unprecedented filibusters of professionally well-qualified Bush nominees who are simply too conservative for the Democrats' taste. And now, as both sides prepare for a climactic battle in the event of any Supreme Court retirements, Republicans are threatening the so-called nuclear option.

Here's how it would work: Republican leaders would ask Vice President Cheney, as the Senate's presiding officer, to rule that the Constitution requires the Senate to hold up-or-down majority votes on all presidential nominees. Such a ruling would trump any contrary advice from the Senate's parliamentarian. And unless vetoed by a Senate majority, such a Cheney ruling would override both the Senate rule requiring 60 votes to break a filibuster and the one requiring 67 votes to amend the rules themselves. It would also weaken the counter-majoritarian role that the Senate has proudly played since the founding of the nation.

The Republicans could then ram all of Bush's nominations through with 51 votes. But such a ruling, Senate Democrats have made clear, would mean Armageddon. They would and could use parliamentary devices to bring the chamber to a grinding halt for weeks or months, bottling up Bush's entire legislative program and slowing down all other business. The fallout would bring partisan bitterness to a nadir unseen in recent history.

It's time for a statesmanlike compromise to take us back from the brink, like the one that President Kennedy and Soviet leader Nikita Khrushchev crafted to step back from the brink of nuclear war during the Cuban missile crisis of 1962.

The key would be for Republicans and Democrats alike to recognize that only a blinkered partisan or an artificial-intelligence supercomputer could calculate with real confidence which party deserves more blame for bringing the judicial appointment process to an ever-sorrier state over the past 16 years.

President Reagan arguably overreached when he nominated archconservative Robert H. Bork in 1987 to fill the seat of moderate centrist Justice Lewis F. Powell Jr. This effectively asked a Democratic-controlled Senate to help move the Supreme Court—as closely divided then as now—sharply to the right; just for starters, Bork's confirmation would probably have doomed Roe v. Wade. Democrats understandably balked. But rather than confining themselves to challenging Bork's conservative views, they demonized the distinguished former solicitor general as a monster bent on destroying our constitutional rights.

Then, during the first Bush administration, came the equally bitter battle of 1991 over another archconservative, Clarence Thomas, which would have been a partisan extravaganza even if Anita Hill had never shown up. Senate Democrats could not stop Thomas. But below the radar, they used stalling tactics to bottle up some well-qualified lower-court nominees.

Senate Republicans greatly escalated such stalling tactics during President Clinton's second term. Despite Clinton's conciliatory efforts to consult with them, and his avoidance of provocative nominations—most of his picks were closer to being moderates than crusading liberal activists—Republicans used "secret holds" and other gimmicks to deny votes to many Clinton nominees and demagogic attacks to defeat one (Ronnie White) on the floor.

One result was to save for the current President Bush lots of lower-court vacancies that would, but for Republican obstructionism, have previously been filled by Clinton nominees. Although Bush made a brief conciliatory gesture by renominating one of those Clinton choices, he has otherwise treated his narrow election victory as a mandate to mount the most determined push of any president in recent history to change the ideological balance of the lower federal courts.

Senate Democrats understandably felt justified in resorting to stalling tactics of their own to bottle up some of Bush's more conservative choices. And after a bare 51-seat Republican majority took control in January, the Democrats had to choose between seeing Bush's nominees confirmed en masse and resorting to the filibuster. Never before has this parliamentary weapon been used to kill nominations solely because of ideological disagreements. But now, Democrats are filibustering two professionally well-qualified Bush nominees to federal appeals courts, Miguel Estrada and Priscilla Owen. They plan to filibuster others, and are threatening to filibuster any Supreme Court nominee they consider too conservative.

If this tactic succeeds, it will set an unhealthy precedent. While the Senate has confirmed 124 of Bush's judicial nominees, any 41 senators could henceforth kill any judicial (or executive branch) nomination, no matter how admirable the nominee's character and qualifications. The result would be to unduly sap the power of Bush and future presidents to shape the judiciary—and to doom almost any nominee who has ever dared express a controversial thought.

So it's not hard to understand the Republicans' temptation to go nuclear. Their argument that the Constitution requires the Senate to confirm any presidential nominee who has majority support is plausible, although far from compelling. And Bush might profit politically by the GOP's going nuclear, especially if the Democrats seek to filibuster a Supreme Court nominee who comes across at his or her confirmation hearing as likable, unthreatening, and telegenic. But resorting to the nuclear option would drive the last nail in the coffin of Bush's pledge to be a uniter, not a divider. It would also be bad for the country, which needs less partisan warfare, not more.

The president should invite Senate Democrats to pull back from the brink. The best way to do that might be an informal compromise along these lines: Bush would promise to consult seriously with Democratic senators before making any judicial nomination, as the Constitution's "advice and consent" clause contemplates. In addition, in light of the Senate's slim Republican majority, he would pledge not to try to swing the Court's ideological balance by naming a strong conservative to replace any of the four liberal or two centrist justices who may retire during this Congress.

These Bush pledges would be conditioned on a commitment by Democratic leaders to end their current filibusters and not to filibuster any other judicial nominees on ideological grounds as long as Bush keeps his part of the bargain. Bush could make the deal more palatable by giving a bit of ground to the Democrats who seek access to Miguel Estrada's internal memos from when he worked in the solicitor general's office.

The logic of such a compromise would be a mutual recognition that filibustering a Supreme Court nominee would be a far more defensible tactic than filibustering a lower-court nominee. The reason is that—especially when the justices are as closely divided as now—one or two Supreme Court appointments could engineer dramatic changes in the law on big national issues including abortion, affirmative action, religion, campaign finance, and civil liberties. Arguably, the president should not be able to engineer such a change with a mere 51 votes in the Senate. The 800-odd judges on the lower federal courts, on the other hand, have far less latitude and are far more constrained by Supreme Court precedents.

Any such compromise would quickly unravel unless Bush and Senate Democrats avoided unnecessary provocations. If conservative Chief Justice William H. Rehnquist retires, for example, it would not do for Bush to try to promote Justice Antonin Scalia, a slightly more conservative, ferociously brilliant polemicist who is a red flag to liberals. Such a nomination would not tip the Court's balance (Scalia would still have only one vote). But it would send liberal groups into a frenzy that would make it hard for Senate Democrats to resist liberal demands for a filibuster.

Perhaps the most formidable obstacle to any compromise is that Republicans and Democrats alike seem to believe passionately that their adversaries' tactics have been uniquely outrageous. There may be less trust between them than there was between Kennedy and Khrushchev in 1962. Before it's too late, they should all ask themselves this question:

If the shoe were on the other foot—if a President Gore were trying to ram a slate of liberal judicial nominees past a 48-seat Republican minority—wouldn't we be doing about the same things that our adversaries are doing now?