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Senate Does the Sidestep

Why stand on principle when a quick shuffle on filibusters will do?

May 25, 2005|Ronald A. Cass | Ronald A. Cass, president of a legal consulting firm in Great Falls, Va., was dean of Boston University Law School from 1990 to 2004.

Every time a line is drawn on principle, a deep-seated human instinct emerges -- the instinct to compromise. This week it was the bipartisan "Gang of 14" in the U.S. Senate announcing its own solution to the impasse over filibusters on judicial nominations.

A vote was looming on whether these filibusters are consistent with Senate rules. Republicans and Democrats were arguing how many senators it would take to decide the issue -- 51? 60? 67? In the end, it took only 14.

In the fighting leading up to the Great Compromise, Republican leaders were insisting on a return to the traditional competence-plus-propriety standard for confirmation of judicial nominees, and historic respect for presidential authority.

In the 1990s, even Democratic Sens. Edward M. Kennedy, Patrick Leahy and Joseph Lieberman said an up-or-down vote on the president's picks was constitutionally required. That's the principle Majority Leader Bill Frist, a Republican, was pushing this time around.

Democratic leaders were standing on principle too: the minority's right to resist majority rule. But Democrats had taken minority rights to a new level by filibustering judicial nominations. They targeted a group of 10 nominees who offended interest groups that support Democrats.

Democrats' invocation of the filibuster was wrong. Filibusters date back to at least the 1840s. But with the possible exception of the 1968 nomination of Abe Fortas to be chief justice (a complicated story ending with him resigning from the bench), there were no filibusters of judicial nominees in the entire history of the nation. None. Until 2001, when the Democrats declared that they would filibuster any of President Bush's nominees they didn't like.

There is good reason for the historic distinction. Filibustering legislation changes the balance of power within Congress. But filibustering judicial nominations changes the constitutional allocation of power between president and Senate. And, ultimately, it threatens the independence of the courts.

Earlier this week, both sides thought they were on track for a resolution of this dispute. Would the Senate rule that filibustering judges was out of bounds? Yes or no? We were about to see which principle the "world's greatest deliberative body" would adopt. We didn't get there.

Instead, amid the self-congratulations of the Great Compromisers, what we got was a more serious threat to constitutional principle. The bipartisan group of 14 Republicans and Democrats -- a "super-minority" -- stuck to no principle at all except that of avoiding having to choose one.

They came before the cameras proud to have struck a compromise. Vote on some nominees, not others, and the 14 will pick which ones. The Democrats in the group agree that three people they branded dangerous extremists can, after all, be federal judges. Republicans in the group agree that two nominees with strong backgrounds can be left in confirmation limbo. Everyone says there won't be filibusters in the future unless someone thinks there's an "extraordinary circumstance." What could be more reasonable? Everyone holds hands and sings "Kumbaya."

Minority Leader Harry Reid was trying to shift power from the president and majority party to the minority. But the compromisers managed to shift power to an even smaller minority. A self-selected minority. And they struck a compromise that is mushy at its core.

Filibusters now are only for "extraordinary circumstances" -- which is exactly what Democrats said motivated the 10 filibusters that started all of this.

There is something wonderfully comforting about compromise. Compromisers feel superior to the inflexible folks who stand on principle. But principles can't be compromised. And shouldn't be. Instead of handing out laurel wreaths to the compromisers, their constituents should tell them that it's time to stand for something. Vote to end the filibusters on judges. Or vote to keep them. Don't engage in cynical horse-trading that makes some nominees casualties of the impulse to duck hard choices.

Compromise preserved the wonderful tradition of Senate deal-making. But there are higher values than a comfy political club.

Today's super-minority tells us who's too extreme to deserve a vote and who's not. But it doesn't give us any guide to the principles behind that choice. We'll have to wait for the next campfire to see who's still holding hands. And who's getting roasted.

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