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Published: Wednesday, 4/13/2005

Filibuster a worthy tool

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 any more. It noted that a movement that began as respectful of traditions and institutions is now more interested in using 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.

One more 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 was filibustered.

During the Bush years, Democrats have resisted some of his judicial nominees for being too right-wing. 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, and Senate Republican leader Bill Frist has threatened to end the filibuster, using the so-called "nuclear" option so that Mr. Bush's choices can be confirmed without any parliamentary interference.

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 setting 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.

This could be about lowering the bar before a Supreme Court nomination comes along. But mostly it's hubris: They want to do it because they can. The Republicans can't imagine 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.



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