Busting the Party Divide

Courageously defying hard-line partisans in both parties, a group of 14 moderate Senators crafted a filibuster compromise on Tuesday, avoiding the nuclear option by preserving the judicial filibuster in extraordinary circumstances. Moderates have wrenched the future of the Senate from the hands of extremists and offered Americans a (perhaps fleeting but nonetheless welcome) respite from the usual politics of partisanship.

These moderates worked together to avert a doomsday scenario and save the filibuster because they recognized that the filibuster is needed to preserve the deliberative nature of the Senate; the filibuster rewards working across party lines, encourages politicians to reach out and try to convince the other side, and prevents a slim majority from running roughshod over the minority party.

Moreover, their compromise is a bipartisan message to Bush, calling on him to consult the Senate before nominating judges. As the compromise memo argues, the Constitution checks Presidents power to nominate judges by requiring the advice and consent of the Senate. The President should work with Senators from both parties before choosing judicial nominees, instead of attempting to fill the judicial ranks with extremely conservative justices like William Myers and Henry Saad. A less unilateral approach would lead to the nomination of moderate judges that would be acceptable to a broad spectrum of representatives.

Unfortunately, this compromise could be merely a delay before an inevitable showdown over the filibuster. The key to this compromise is the ambiguous phrase extraordinary circumstances, and the danger is that Republicans could interpret this phrase as, Democrats can keep the filibuster as long as they never use it. Especially in the event of a Supreme Court vacancy, arguments over a contentious judicial nomination could degenerate into a Filibuster: Round Two debate.

The fundamental problem is that both parties view the judiciary as a means of enacting social policy; both Democrats and Republicans have come to expect that certain social issues will be determined by the judicial branch of the government. Therefore, driven by the courts roles in Americas culture wars, both parties attempt to pack the courts with like-minded judges. Judges are nominated for their political views, not because of their judicial prowess, and condemned for their political leaningstoo conservative, too liberalinstead of for flaws of jurisprudence, such as stamping their personal views upon legal decisions. Although it is easy to dismiss such laments as nave, the contemporary politicization is unprecedented in recent U.S. history and unmatched by other liberal democraciesother democracies, like Canada and the United Kingdom, manage to nominate judges in a much less political manner.

In the short run, the politicization of the judiciary is likely to continue apace, but filibuster compromise can only be beneficial. Although it does not address the underlying issues, the compromise keeps the filibuster, which is a natural check upon the ability of one party to pack courts with ideologues. Even more important, the compromise proves that rumors of the death of the political center have been greatly exaggerated; centrists have sent a clear message to Bush pushing for the nomination of less extremist judges. Hopefully, the political center can continue to exert influence over the Senate, changing the tenor and motivation behind the judicial nomination process.