A Judicious Compromise

David S. Broder editorialized in the Washington Post Democrats Should Take the First Step to End the Filibuster Fracas

I don't think their leadership is capable of doing this. They are too wedded to the philosophy of hate and opposition.

It is not too late to avoid a Senate-splitting rules fight over President Bush's embattled judicial nominees and achieve something positive for both the public and the cause of good government, if only Democrats and Republicans can free themselves for a moment from the death grip of the opposing outside interest groups.

Here is what should happen: The Democratic Senate leadership should agree voluntarily to set aside the continued threat of filibustering the seven Bush appointees to the federal appeals courts who were blocked in the last Congress and whose names have been resubmitted. In return, they should get a renewed promise from the president that he will not bypass the Senate by offering any more recess appointments to the bench

In other words abandon a recess appointment for Bolton and giving him a year to clean things up at the U.N.

and a pledge from Republican Senate leaders to consider each such nominee individually, carefully and with a guarantee of extensive debate in coming months.

That has already happened

In addition, if the judicial filibuster were ended by a vote of the Senate, it would vanish entirely. By yielding the right to filibuster these specific court appointees, the Democrats could deny the Republicans any immediate pretext for changing the rules -- and preserve the possibility of a filibuster should Bush later submit someone they find seriously objectionable for a vacancy on the Supreme Court.

The leverage they relinquish today might be much more important to them tomorrow.

The Supreme Court certainly is important.

But there are also positive goals that Democrats and Republicans can achieve by this kind of agreement. These appeals court judgeships -- one step below the Supreme Court -- are important, but today they are almost invisible. By securing agreement that the Senate would hold serious, sustained debates on each one, perhaps giving one week of each month to each judicial confirmation debate until the backlog is cleared, the Democrats could bring much more visibility and accountability to the confirmation process.

A week is reasonable. What they should do is change the level to invoke cloture (break a fillibuster) letting it start at 60, but go down each day so that at the end of the week it is an up or down vote.

Instead of sending a message that they do not trust their Republican colleagues' judgment -- and therefore feel justified in preventing a vote -- the Democrats would be saying to their colleagues and the country: We trust you to take your "advise and consent" duties seriously.

That is reasonable

And they should feel such trust. The balance of power in the Senate is not in a right-wing cabal; it is in the moderate center. You can see that in the careful way the Senate Foreign Relations Committee is weighing the nomination of John Bolton as ambassador to the United Nations. You saw it also in Senate debate on the budget resolution.

Except for Clarence Thomas, who was supported by only 11 Democrats, every single Supreme Court nominee of Presidents Ronald Reagan, George H.W. Bush and Bill Clinton was confirmed with the support of the overwhelming majority of opposition-party senators.

The outside groups on the right and left are pressuring senators for a showdown, telling them not to yield an inch. Only the senators themselves can defend their institution from the damage the "nuclear option" would cause.

They have the capacity -- and the clear duty -- to do it.

James Joyner blogged Something along these lines makes sense, even if it's unlikely in the current climate. Less than twenty years ago, Antonin Scalia was confirmed to the Supreme Court by a unanimous vote (98-0). There should be a bipartisan consensus that highly qualified judges whose ideology aligns with that of the president should be confirmed absent serious ethical considerations.

The routine filibuster, or threat of same, of political appointees turns the system of its head and actually weakens respect for the Senate as an institution. The advise and consent power is a necessary check and sometimes stops the confirmation of a candidate who would not have been nominated if properly vetted--say, a Lani Guinier. But if a mainstream nominee like Bill Pryor can be filibustered to death, then it's hard to take the opposition seriously when there is genuine cause for concern.

I agree completely. But unfortunately the Dems are so upset that they are not in power they feel they have to oppose everything just to show that they have some power.

Josh Marshall blogged Why can't Broder just bite the bullet and make an argument on pure majoritarianism (a reasonable argument) rather than suggesting, as he does here, that the Democrats give up the lever of power represented by the filibuster in exchange for an unenforceable promise from the Republicans to be nice?

Perhaps we can all come together on a bipartisan basis and ask what Broder is smoking -- and whatever it is, that he at least smoke it in Washington, so he'll have some clue of what's been happening in the capital for the last five years.

If the Dems want the Republicans to be nice, they should try being nice themselves.

Lambert @Corrente blogged David Broder to Dems on filibuster: Bend over, it won't hurt a bit

Sounds like a plan to me.