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 ith
the World Series on tap, one's thoughts turn naturally to hardball
— unless, of course, one is a Senate Republican. I'm tempted
to say they've done it again — snatched defeat from the jaws
of victory — but I'm afraid that this time victory was never
in sight. What we have instead is a simple, but classic, Senate
Republican blunder. How else to describe their decision, two weeks
ago, to press for speedier confirmation of President Bush's judicial
nominees by filibustering, during war, the foreign-operations spending
bill?
Yes, under
the current crisis, that is "must-pass" legislation —
step one in the Republican thought process. And yes, credit Senate
Republicans for at least taking a stand, something they rarely do.
But unless they were prepared to withstand charges of undermining
the war effort just to get Republican judges confirmed, it was a
losing strategy from the start. And it did lose. On Tuesday afternoon,
under pressure from the White House, the filibuster collapsed, leaving
the party with egg on its face once again. It's as if the Gingrich
debacle of six years ago left no impression.
Make no mistake,
Senate Democrats are playing ideological politics with Bush's judicial
nominees. Just look at the numbers. This year there have been 117
vacancies on the federal courts — half the seats on the Sixth
Circuit Court of Appeals are now vacant. The president has thus
far nominated 60 candidates to fill those vacancies. Yet only 12
of those nominees have been confirmed by the Senate, and two of
those were Democratic holdovers from the Clinton years, renominated
by President Bush as a gesture to the Democrats. Some of the most
qualified candidates have languished since early May; yet the Senate
Judiciary Committee, controlled by the Democrats since late May,
has refused even to hold hearings on their nominations.
What Democrats
have done instead is try to thoroughly politicize the confirmation
process. Thus, in June, and again in early September, they held
hearings not on the nominations but on whether nominees should have
to pass an ideological litmus test, made up by Democrats, before
being confirmed. What's the point of having judges hear cases on
abortion, gun control, or affirmative action if you're going to
decide those cases, in effect, during the Senate confirmation process?
To listen to the Democrats, judges should decide cases not on the
facts and the law but on the basis of their ideology. That's the
death of the rule of law.
Republicans,
then, have a genuine gripe — about both the way Democrats view
the courts and the way they're going about the judicial confirmation
process. It's as if Democrats were still fighting Bush v.
Gore and the Florida long count, which of course is exactly
what they're doing. But if you're going to oppose this Democratic
lawlessness, you've got to be smart about it. You've got to pick
your fights carefully, then take your case to the public forcefully.
When the nation's at war you don't block the foreign-operations
spending bill over the confirmation of Republican judges. You don't
have to be a rocket scientist to see Democrats having a field day
with that.
Yet those simple
points seem to have gone right by the Republicans. Last week Senate
Minority Leader Trent Lott (R., Miss.) confidently crowed that the
Democrats eventually would have to make some deal on judicial nominees.
"When you're majority leader, you can huff and puff about how
you're not going to negotiate," Lott said. "But you have
to." Well, this week it was Lott who blinked.
At a congressional
leadership breakfast at the White House on Tuesday, President Bush
asked Senate Majority Leader Tom Daschle (D., S.D.) if there was
any progress on judicial confirmations. Daschle pointed to the Republican
stall, then added, "you need these appropriations bills more
than I do." Either the president hadn't been briefed by Senate
Republicans, or he wasn't on board. But in either case, the party
folded its tent. Perhaps the most revealing line came later from
Lott, after rightly criticizing Senate Judiciary Committee Chairman
Patrick Leahy (D., Vt.) for moving confirmations so slowly: "It's
important not to be arguing even over that."
Thus, it's
comity, above all, that Senate Republicans seem to crave. If they
want to be in the game, they're going to have to learn hardball.
For the moment, however, we're told that they've turned their attention
to an energy bill as part of an economic stimulus package. We're
all Keynesians now.
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