Take the Deal

| Wed May 18, 2005 11:12 AM EDT

Ed Kilgore says that if the Senate Democrats can work out a compromise on judges with some of the moderate Republicans, they should take it. That seems about right. The latest rumored deal would confirm all of Bush's nominees but perhaps the two worst—Janice Rogers Brown and Priscilla Owen—and Democrats would keep the right to filibuster nominees in the future, including potential Supreme Court nominees. There's no shame in that.

At any rate, Bush's picks for the lower and appellate courts are, to some extent, less important, since those judges are more or less constrained by precedent from the Supreme Court (although they're still important!). The real battle will be when Chief Justice William Rehnquist retires, and Democrats should be prepared to force the president to nominate only conservatives who respect the current Constitutional order and show some restraint. (Jeffrey Rosen wrote up a profile a while back that divvied up the GOP judge stable into "conservative activists" and "principled conservatives"—the idea is that the former group is more likely to plunge the country back into is pre-New Deal paradise of stripped-back environmental regulations, no labor protections, and other funny goodies; the latter group is conservative, sure, but also willing to uphold judicial precedent.)

As for the politics of all this, well, I don't think Democrats win or lose. Some of the activist base might be upset if moderate Democratic Senators strike a deal and let through a few of Bush's judicial nominees—who are quite conservative—but as I've argued at length here, in the short term, the right-wing theocrat fringe probably wins by going nuclear, and it's a better deal for all involved to preserve the Senate's right to filibuster judicial nominees. Plus, Democrats will get to claim a victory over Frist and the nuclear brigade.

Some Senate Republicans, on the other hand, would very likely suffer from any sort of compromise. Bill Frist's bid for the presidency in 2008 would essentially be over; the party base will never forgive his bumbling inability to push the red button. More to the point, discontented right-wing evangelicals—who at this point would seem to accept nothing less than full-scale public neutering of each and every Democrat in Congress—may well end up sitting out the 2006 midterm elections in disappointment. That would hurt the GOP. Or the base may renew their push next year, hoping to give Republicans 60 Senate seats and finally abolish the filibuster once and for all. It all depends on how much abuse the Christian right can take from a patron party that, quite frankly, can't deliver the goods.

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