Judicial Wars Aren't Over

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This column was written by the editors of The Nation.
The Senate battle over the judicial filibuster was framed as a titanic struggle between Democrats and Republicans that ended in a reasonable compromise. But the conflict was not a partisan rules fight. What was at stake was the composition of the independent judiciary and the American system of checks and balances -- which includes the balance of power between the minority and the majority in Congress and the delicate balance between the Senate and the White House.

The final -- if it is final -- resolution prevented the Republican leadership and its far-right supporters from eliminating the judicial filibuster, which they detest as an obstacle to their crusade to pack the courts with judges who will limit individual rights and bolster corporate interests. The filibuster still exists, though in a severely weakened condition, as all sides prepare for the expected clash over the next Supreme Court vacancy.

But stopping the "nuclear option" advocates from getting all they wanted came at a high cost. The Democrats who negotiated the arrangement agreed to permit three of Bush's worst judicial nominees -- Priscilla Owen, William Pryor Jr. and Janice Rogers Brown -- to receive up-or-down votes, knowing they'd likely be approved (as Owen already has). Owen routinely sides with corporations against people and has inserted her personal antiabortion views into a court decision. Pryor has opposed antidiscrimination and environmental protection laws. Brown has declared government the enemy of civilization. Recently, she argued that people of faith are "embroiled in a war against secular humanists who threatened to divorce America from its religious roots." These judges -- who question the constitutionality of Social Security, minimum wage laws, the forty-hour workweek and abortion rights -- will pose a threat for decades to come.

Moreover, the deal undermines the filibuster, which can be used only "under extraordinary circumstances." Consequently, the seven Republican senators who participated in arranging it now have something akin to veto power over the Democrats' use of a judicial filibuster, and there is no guarantee that Democrats can wield it to block a Supreme Court nominee.

Still, Democrats and their allies in the judicial wars are claiming victory (as some social conservatives, like James Dobson, are depicting the deal as a terrible defeat). They point to the fact that one or two other Bush nominees may be stopped because of the compromise. They also note that the filibuster will be available in the future. And it's possible that this was the best deal the Democrats could have struck, as the GOP seemed to have enough votes to launch the nuclear option and kill the filibuster. Though public opinion and editorial boards were opposed to that maneuver -- once again, radical Republicans came across as being out of the mainstream -- there was no telling which party would have won the post-nuclear blame game. Democrats could have ended up with the filibuster dead, all Bush nominees approved and a reputation for obstructionism.

This deal has yielded an uneasy peace, one arguably more beneficial to Republicans than Democrats, but it doesn't resolve the conflict. What was at stake -- a judiciary that protects, not eviscerates, rights -- is still at stake. Democrats should hope the crisis has fired up their base, for the judicial wars will, and must, continue.


Reprinted with permission from The Nation

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