'Nuclear option' and bipartisan hypocrisy

Tradition is at stake. The Constitution is under attack. The ultimate battle between good and evil is on the line. The last time there was this much concern about an event in this town was ... well, last weekend, when the Washington Redskins didn't choose a wide receiver with their first pick in the NFL draft.

But, of course, we aren't talking about football here. We are talking about the now-looming judicial filibuster battle and the Senate GOP leadership's "nuclear option." That bit of hyperbole refers to a plan that would remove the need to get 60 votes to close debate on a nomination before getting a straight "up or down vote" on that person's judicial appointment.

What's really at stake here is probably not as much as is claimed by either side. The nation's capital frequently works itself up into a tizzy. It's a good way to release all the pent-up aggression and it makes the talk shows more interesting. But the proposal is not insignificant.

The Republicans, angry that the Senate Democrats have blocked votes on 10 candidates President Bush has nominated for the federal bench, are proposing a fundamental change to the Senate rules so they can get around the fact that they don't quite have 60 votes in the upper house. Democrats have passed more than 200 Bush nominees through, but Senate majority leader Bill Frist says that's not enough. The will of the people is being overridden by the minority, he declares, and all nominees deserve an up or down vote.

Nonsense, say the Democrats, who have invoked tradition in their battle, accusing the Republicans of trying to change the rules mid-game and ignoring more than 200 years of history. It takes 60 votes to get a vote on anything: Why should confirming judges be different? If the Senate GOP goes forward with the plan, the Democrats are threatening to shut down the government.

We'll see your tradition and raise you the Constitution, say Senator Frist and company, which says nothing of needing 60 votes for judges. And while we're at it, let's add the Almighty to the mix. On Sunday night the Christian conservative group the Family Research Council held a rally simulcast at churches around the country in support of the filibuster plan. They called it Justice Sunday.

"The filibuster was once abused to protect racial bias," one piece of FRC literature said, "and now it is being used against people of faith."

Yes, it's a battle between the Godly and the Godless. Have the stakes ever been so high? Is it too late to change the plot of NBC's end-of-days miniseries "Revelations"? They could set the finale on the Senate floor. Is Bruce Willis available?

But when everyone's done hyperventilating, there are a few points to consider. The idea of eliminating the filibuster isn't exactly new. In fact, the Senate Democrats proposed the complete elimination of the filibuster 10 years ago. It lost in a landslide, 76-19. The 19 votes all came from Democrats, who at the time - when Bill Clinton was in the White House - found filibusters to be an obstructionist tool.

And there's plenty of hypocrisy to go around. The same Republicans who now find it so important to hold a "simple up or down vote" felt differently back in the day - that's the day when they didn't hold the presidency. Frist himself participated in an attempted judicial filibuster in 2000. And scores of Clinton nominees were blocked at the committee level, never getting the cherished "up or down vote."

Tradition, the Constitution, and God seem to have different allies in the Senate at different times.

But all the hypocrisy doesn't mean there is no right answer in the filibuster debate. There are some arguments that simply don't seem to make sense.

If the GOP and the FRC are so scared of the damage being done by activist judges, why would they want to create a situation where there so easily could be more? After all, it wasn't so long ago that the Republicans were in the minority and, as much as it may pain them to think this, they probably will be again someday. Then they'll no longer have the judicial filibuster as a tool, freeing a Democratic president and Senate to put in place whichever activist judges they choose.

And is it really worth going to the mat over the fate of these 10 judges? Are there no other names out there? By historical standards, Mr. Bush has had a better run than most on installing judges. As a baseball fan, Bush surely knows that 200 out of 210 is a pretty good batting average.

But the biggest concern about removing the judicial filibuster is not about whether Democrats or Republicans score points. The current system is in place in part to make sure the judiciary never lurches too far in one political direction or another. Eliminating the judicial filibuster removes a set of brakes on partisan governance in the one branch of government that is the most removed from the political fray. It paves the way for more ideological judges on both the right and left.

In a country increasingly divided along political lines, it's hard to see how that's a good idea.

Dante Chinni is a senior associate with the Pew Project for Excellence in Journalism. He writes a twice-monthly political opinion column for the Monitor.

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