The selection of the next one or two Supreme Court justices - and how that court's decisions turn - may depend on how a handful of senators define "extraordinary."
That word lies at the heart of the last-minute bipartisan agreement reached Monday by 14 senators intended to preserve the tradition of the filibuster as a blocking tool for a Senate minority.
The agreement holds only through this Congress, or until January 2007. Under it, though, three of President Bush's current nominees will not be filibustered by Democrats, thus allowing their approval by a simple majority vote instead of the potential filibuster hurdle of three-fifths. Mr. Bush's other nominees, however, including possibly at least two for the Supreme Court in the next 20 months, could be filibustered "under extraordinary circumstances."
The problem with "extraordinary" is that it's no longer a very extraordinary word, given all the rhetoric and accusations thrown at the courts themselves, as well as many past Supreme Court nominees and many current Bush lower-court nominees. This agreement could easy fall apart if Republican and Democratic moderates believe the other side is stretching the word's meaning.
The senatorial center cannot hold unless the rhetoric over judges recedes and reason prevails in selecting them.
The rising incivility toward many nominees, as well as the whole judiciary itself, has bred a dangerous disrespect for this independent branch of the federal government - one that's still wrapped in the mystique of black-robed individuals who work in secret chambers, interpreting laws based on constitutional principles, and who serve for life.
Take just these examples of the worrisome McCarthy-like rhetoric:
Pat Robertson, founder of the Christian Coalition, recently criticized the federal courts for eroding American values, saying this is "probably more serious than a few bearded terrorists who fly into buildings." Sen. Edward Kennedy, meanwhile, vowed to resist "any Neanderthal" who is nominated by Bush. The Senate minority leader, Harry Reid, practiced personal destruction by innuendo by making vague reference to "a problem" in the confidential FBI file of Judge Henry Saad, a Bush nominee.
Sen. Charles Schumer, meanwhile, accused Priscilla Owen, a Bush nominee and justice on the Texas Supreme Court, of being "more committed to advancing her own extreme beliefs ... than guaranteeing a fair shake." And finally, House Majority Leader Tom DeLay threatened judges who allowed the death of Terri Schiavo that they will "answer for their behavior." (He later apologized.)
What are the effects of such words? One comes from Joan Lefkow, the federal judge from Chicago whose mother and husband were killed in February by a man whose complaint she had dismissed. She warned the Senate this month that "the fostering of disrespect for judges can only encourage those who are on the edge or on the fringe to exact revenge on a judge who displeases them."
Epic struggles over Supreme Court nominees are not new. But since 1987, with the vicious attack on the character of Reagan nominee Judge Robert Bork, the knives have been out for almost every nominee, and lately for many to the appeals courts.
Such disrespect creeps even into the Supreme Court itself. Justice Antonin Scalia has accused a majority on the court of relying on "personal views," "feelings," and "self-awarded sovereignty" in cases. He indirectly accused one justice of lacking reason. Justice Stephen Breyer once wrote that a majority in the 2000 case that gave Bush the presidency had committed "a wound that may harm not just the Court, but the nation."
This Senate agreement should serve as a necessary check in the trend toward hostile vetting of nominees. Like the 14 senators who found common ground, the Senate can approve only those nominees who don't cater to the left or right.
Politicizing the courts, either by judges themselves or their critics, only erodes the judiciary's role as an equal branch of government that must balance rule of law against the rights of the individual before laws made by elected politicians in the other two branches.