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Thu May 26 12:54:45 PDT 2005

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FINGERS OFF THE NUCLEAR BUTTON, FOR NOW
May 24th 2005  

Democrats and Republicans have backed away from a potentially
catastrophic clash over judges in America's Senate. A vote to confirm
some conservative judges while protecting the liberal minority's rights
will keep the peace for a time. But fighting may break out again before
long

WAS it disaster avoided, or postponed? For weeks, a showdown over
George Bush's judicial nominees had threatened to devastate America's
Senate. Mr Bush had proposed several judges that Senate Democrats found
unacceptable. The Democrats threatened a filibuster, a parliamentary
procedure for delaying votes that can only be overcome with 60 of the
Senate's 100 votes. The Republicans, controlling just 55 votes,
counter-threatened to change the rules governing the filibuster--a
so-called "nuclear option" that could have brought co-operation between
the parties to a standstill.  

But late on Monday May 23rd, the two sides struck a deal. Several of
the most controversial judges will go to a Senate vote, which they will
almost certainly win. In exchange, the Republicans will not push the
nuclear option, and both sides promise in future only to filibuster
judicial nominees in "extraordinary circumstances", with that term left
undefined. The moderates who struck the deal emerged relieved and
smiling from their conclave. Charles Schumer, a New York Democrat,
said: "Armageddon has been avoided. Thank God."  

For now, at least. The nuclear option, which had been scheduled for a
vote on Tuesday, would have, in the eyes of Democrats, overturned two
centuries of tradition in which the Senate has been the more careful
and deliberative of the two houses of Congress. The House of
Representatives, sniff senators, is for raucous party-line hacks.
Senators serve long, six-year terms, and are usually more independent
of their party leaderships. Senators are proud of their traditions of
comity and compromise, habitually boasting that theirs is the "world's
greatest deliberative body".

The nuclear option certainly would have changed that. Republicans
sought not to eliminate the filibuster entirely--merely the filibuster
on judicial nominees. But Democrats nonetheless threatened to bring the
work of the Senate to a grinding halt, using all the niggling
parliamentary tactics available to make sure that getting anything done
would be nigh-impossible. This was a dangerous strategy: whether or not
Americans agreed with ending the filibuster, the Democrats risked
appearing petulant and selfish at a time when the economy and national
security continue to cry for attention. (The shutdown of government by
Newt Gingrich's congressional Republicans in 1995 had ended up hurting
Mr Gingrich's party.) So it was a strategy that Harry Reid, the Senate
Democrats' leader, was keen to avoid.  

But both Mr Reid and Bill Frist, his Republican counterpart, were under
heavy pressure from the uncompromising wings of their party to hold
their ground. Among the central issues, as ever, were the nominees'
opinions on emotive issues like abortion and religion. For example,
William Pryor, one of Mr Bush's nominees, has called ROE V WADE, the
Supreme Court decision that guaranteed access to abortion, "the worst
abomination of constitutional law in our history". This kind of talk
thrills religious conservatives (whom Mr Frist is courting, in
anticipation of running for president in 2008) and appals secular
liberals. Well-funded and well-organised groups were pushing both
Senate leaders not to back down. Someone seemed bound to suffer
humiliation. That nobody did redounds to the credit of a handful of
centrists, especially those serving in states that tend to favour the
opposing party. Notable among the compromisers were Republicans from
the northeast and Democrats from the Midwest and South.  

APOCALYPSE LATER?
Just because there was no nuclear war does not mean that there will be
no fallout. Mr Frist, in particular, may feel the wrath of religious
conservatives, for whom a vote on every judge in question (two will now
be put aside indefinitely) was the only acceptable outcome. Meanwhile,
Democrats will take some flak for letting through judges like Mr Pryor
who will pull the judiciary further to the right. The federal bench
being the only branch of government not already dominated by the
Republicans, this could demoralise a party already adrift and spending
more of its time trying to stop Mr Bush's policies than proposing
alternatives.

Moreover, the fight may not yet be over. The agreement, and the wording
of "extraordinary circumstances", included enough ambiguity to let both
sides claim victory. But the real battle, everyone agrees, is still
ahead, when a vacancy opens up on the Supreme Court. The chief justice,
William Rehnquist, is suffering from cancer and seems certain to retire
during Mr Bush's term. He is conservative, but often considered a
pragmatic one whom Mr Bush could replace with a more ideological
figure. And John Paul Stevens, one of the court's liberal stalwarts, is
85. His replacement with a conservative would shift a 5-4 conservative
majority to 6-3. Liberals are desperate to prevent this.

Replacing Mr Rehnquist with another conservative might not trigger a
showdown. But if an abortion-rights supporter retires or dies and Mr
Bush nominates a ROE V WADE opponent to fill the vacancy--as his
conservative base and his own beliefs are almost certain to make him
do--Democrats are likely to consider this an "extreme circumstance".
Then the fight could begin anew, with Democrats threatening a
filibuster and Mr Frist, carried by his presidential ambitions, once
again threatening the nuclear option. 

Both parties have an interest in forestalling this. The Democrats risk
being seen as a hapless minority capable only of obstruction, which
could make voters unwilling to give them a chance at power in
congressional elections next year and the presidential poll in 2008.
Republicans, for their part, risk being portrayed as extremists. The
Terri Schiavo affair, in which Congress intervened to try to save a
brain-damaged woman from having her feeding tube removed, was a
public-relations embarrassment. The party that once stood for small
government is seen as liking big government just fine when it is in
control.  

But voters remain sceptical of giving either side too much power--as
Bill Clinton learned after two years of undivided power early in his
first term. His overambitious efforts to push a nationalising
health-care bill and other leftish goals led to a surprise trouncing in
the 1994 congressional elections. Some Republicans are now bearing this
precedent in mind. Compromise forestalled nuclear war this week, and
both sides have an interest in keeping their fingers off the button in
the future. But they may not be able to.

See this article with graphics and related items at http://www.economist.com/displaystory.cfm?story_id=4006031&fsrc=nwl

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