Editorial: No nukes / To end the filibuster would be a huge mistake

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Congressional Quarterly, the highly respected, nonpartisan chronicler of government and politics, recently devoted the cover of its magazine, CQ Weekly, to a provocative subject: Whether conservatives are really conservative anymore. It noted that a movement that began as respectful of traditions and institutions is now more interested in using federal power to get results.

The catalyst of the magazine's focus was the case of Terri Schiavo, in which Congress and President Bush with a fine disregard for conservative principles combined to try to get the federal courts to intervene in one state's -- and one family's -- business. But another example of conservatives being disrespectful of traditions is looming -- and it also involves judges.

President Bush has been frustrated because some of his judicial nominations have been blocked in the U.S. Senate. This is not a new complaint, because President Bill Clinton had a similar problem. In his case, it was because Republicans considered his nominees too liberal and used their strength to keep them bottled up, although none were filibustered.

During the Bush years, Democrats have resisted some of his judicial nominees for being too right-wing -- a fair complaint in a few cases. Ten of Mr. Bush's appellate nominees were filibustered, Yet, at the same time, the Senate approved 204 of his nominations for the federal bench.

Emboldened by his re-election victory, Mr. Bush is in no mood to compromise, even though he has gotten 95 percent of what he wanted. He has provocatively renominated seven of his thwarted judicial candidates. Senate Republican leader Bill Frist has threatened to end the filibuster so that Mr. Bush's choices can be confirmed without any parliamentary interference. Sen. Frist would do this with the so-called nuclear option.

In the American system of checks and balances, the filibuster occupies an important position. It is a 200-year-old Senate tradition that has allowed a minority to apply a brake on majority rule. (This is the maneuver used by the fictional Sen. Jefferson Smith in the famous film "Mr. Smith Goes to Washington.")

It now takes 60 votes to cut off a filibuster, but under the nuclear option a simple majority would be required. Why would Republicans contemplate changing a Senate rule to set aside a practice that has served the republic well since its earliest years?

Frustration only explains part of it. Contrary to recent claims, Republicans have used the filibuster for judicial nominations themselves -- for example, they did so in 1968 to oppose President Lyndon Johnson's attempt to elevate Supreme Court Justice Abe Fortas to become chief justice.

It may be that this is all about lowering the bar before a Supreme Court nomination comes along. But mostly it seems to be contemplated because of hubris: They want to do it because they can. The Republicans who now rule can't seem to imagine ever being in the minority again, the attitude once of smug Democrats.

That should be a warning to them. In the ups and downs of American politics, the filibuster has been a bulwark against excess in every season. If the nuclear option is exercised, bitter divisions will roil politics for a generation. Might does not make right, and conservatives will come to regret abandoning their old respect for tradition.


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