Imagine it is the spring of 2006, John Kerry is president, and the Democrats hold the same number of Senate seats as the Republicans do today -- 51. President Kerry has made dozens of nominations to the bench, but he is frustrated because the Republican minority has used the filibuster to block floor votes on a growing number of his nominees to the all-important circuit courts of appeal.
It takes 60 votes to break a filibuster, but those Republicans have stood firm. What is Kerry to do? Does he dare use his recess appointment power to place some of his nominees on the bench, even though they can stay there only until the end of the next session of Congress? He winds up doing precisely that, infuriating Senate Republicans.
All of that is impossible to imagine, you say. But it isn't -- not unless you are certain that a Republican minority would fail to follow the precedent that has been set by the current Democratic minority.
What that minority has done is effect an unexpected escalation in the ongoing battle over judicial nominations. The Democrats -- Sen. Kerry among them -- have gone where no Senate minority ever has gone by routinely resorting to the filibuster to block floor votes on judicial nominees. They have succeeded in denying votes on six of President Bush's choices for the circuit courts.
Bush has responded by using his recess appointment power to place two of the filibustered six on the courts -- Charles Pickering (to the 5th Circuit) and William Pryor (to the 11th). And the Democrats now have responded by declaring that unless Bush promises not to appoint judges while Congress is in recess, they will, as Senate Minority Leader Tom Daschle has put it, refuse "to cooperate in the confirmation of federal judges." Implied here is a threat to filibuster every judge that the Senate majority moves for a vote.
This is where we are with judicial selection, and it isn't a place most observers (including me) thought we ever would be.
During the 100th Congress, the last two years of the Reagan presidency, the Democratic Senate approved 65.2 percent of the president's circuit court nominees, down from the 80 to 100 percent levels of the previous three Congresses, when Republicans ran the Senate.
During the 103rd Congress, when Democrats held the upper house, Bill Clinton saw 85.2 percent of his circuit court nominees confirmed.
But during the 104th, 105th and 106th Congresses, the Republican Senate approved 57.9 percent, 67.9 percent and then 40.6 percent of his circuit court nominees.
Most recently, during the 107th Congress, the Democratic majority, in a vengeful mood, confirmed 50.6 percent of George W. Bush's circuit court choices.
In November 2002, when Republicans recaptured the Senate -- thus producing unified government -- it was reasonable to expect that the judges' wars would abate. But so far in the 108th Congress, while nominations have moved more quickly, Bush still has seen only 40.6 percent (13 of 32) of his circuit court nominees confirmed. The main reason is the Democrats' unprecedented resort to the filibuster.
Few people outside the Senate thought the Democrats really would use it. And maybe a lot of Senate Democrats, fearing negative political fallout, which so far has been nil, didn't think they would, either.
But the unfortunate effect of the Democrats' extraordinary use of the filibuster has been to change the rules governing judicial confirmation. For where a simple majority once sufficed, 60 votes now may be needed if a president wants to see his circuit court choices confirmed.
Given the evenly divided electorate, it is hard to imagine a president working with a filibuster-proof majority--probably one made up entirely of same-party members--anytime soon. Which means that determined Senate minorities--whether Republican or Democratic--can hold the balance of power on judicial nominations.
A question for Kerry is whether it was prudent for Senate Democrats to have ratcheted up the judges' war by employing the filibuster. It often is said that in the Senate, "what goes around comes around." What is going around today could well come around, should Sen. Kerry find himself vested with the power he seeks.
Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.