Filibuster Bluster
Liberals threaten a fight over Justice O'Connor's replacement. Mr. President, call their bluff.

The Wall Street Journal, Saturday, October 1, 2005

Twenty-four hours before Chief Justice John Roberts's confirmation, Sen. Chuck Schumer of New York took to the Senate floor and issued a threat: If the president, when replacing Justice Sandra Day O'Connor, "sends us a nominee who is committed to an agenda of turning back the clock, . . . there will likely be a fight." Like John Kerry's "Bring it on," this may turn out to be all bluster and no bite. After all, Republicans hold a majority in the Senate. Not since LBJ's abortive elevation of Justice Abe Fortas to chief 37 years ago has a Supreme Court nominee faced a serious challenge in a Senate controlled by the president's party.

The GOP has 55 senators, so six of them would have to vote "no" to defeat a nominee. Coincidentally, that is the number of Republicans who voted against Robert Bork in 1987. But liberal Republicans were more numerous then. Today there are just three GOP liberals, all from New England--Lincoln Chafee of Rhode Island and Susan Collins and Olympia Snowe of Maine--who seem likely to vote against a too-conservative nominee. Only one Bush judicial appointee, an Arkansas district judge named Leon Holmes, has ever received a negative vote from any Republican other than the New England trio. Virtually any nominee other than Judge Holmes, then, seems assured of at least 52 votes.

The Democrats could filibuster, a dilatory tactic that allows 41 senators to block a vote. This they did in 2003-04 to prevent the confirmation of a dozen or so appellate court nominees. But in May, under threat of the so-called nuclear option--a GOP maneuver that would have changed Senate rules to abolish judicial filibusters--seven Democratic senators agreed to a compromise in which they disavowed the filibuster except in "extraordinary circumstances."

That exception carries the potential for mischief, but it is unlikely to be realized. Five of the seven compromising Democrats come from states President Bush carried last year, as do 11 other Senate Democrats. These senators are no doubt mindful that their former leader, Tom Daschle, lost re-election in November in substantial part because of his obstruction of judicial nominees. With constituents much more conservative than Mr. Schumer's, they are far less inclined to do the bidding of extremist groups like People for the American Way. Thus red-state Democrats voted 13-3 in favor of Chief Justice Roberts, while more than two-thirds of blue-state Democrats opposed him. Anyway, if the Democratic compromisers do dishonor their agreement, Republicans can retaliate by going nuclear, vaporizing the filibuster forever.

Mr. Schumer concluded his threat this week by instructing the president that a battle over Justice O'Connor's replacement would be "a fight without any winners." Nonsense. Politics is a zero-sum game, so if there are losers, there must also be winners. Just ask John Thune, the junior senator from South Dakota--and the man who toppled Tom Daschle.

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