NUKE 'EM.(The Talk of the Town)(judicial appointments)

During his first four years as President, George W. Bush nominated fifty-two men and women for seats on the Circuit Courts of Appeals. The Senate confirmed thirty-five of them. During the previous Presidential term, Bill Clinton's second, fifty-one candidates for those same appellate courts were nominated. Thirty-five were confirmed. Call it a tie.

The details differed, but the differences tended to offset one another. On the one hand, Clinton, both by inclination and (the Senate being in Republican hands) by necessity, almost always nominated moderates--moderate liberals, moderate conservatives, and just plain moderates--while Bush has almost always nominated conservatives, very few of them moderate and some of them so out there in the distance that their left-of-center equivalents would look more like William Kunstler than like Floyd Abrams. On the other hand, Senate Democrats, a minority for all but seventeen months of Bush's term, have had to use larger-calibre tactics. Republicans and Democrats alike have taken advantage of the Precambrian rules of their chamber to dispose of nominees who, if put to a vote in the full Senate, would have been confirmed. But while Republicans simply arranged for unwanted nominees to disappear forever into the no-exit in-box of the Judiciary Committee, Democrats have been obliged to flourish the ultimate weapon: the filibuster. Call this a tie, too, though with the ideological edge going to Bush.

Now it turns out that the filibuster is not the ultimate weapon after all. It's merely the penultimate one. As Jeffrey Toobin reported in these pages last week ("Blowing Up the Senate"), the real ultimate weapon is--shades of Joe McCarthy!--the point of order. Here's how it would work. Normally, under the Senate's famous Rule XXII, it takes sixty senators, three-fifths of the full membership, to cut off debate and proceed to a vote. However, during a debate on a judicial nominee, a Republican senator would ask the Presiding Officer to rule that further debate is out of order. The Presiding Officer--Vice-President Cheney--would so rule. The ruling would be challenged, of course. But because such a challenge can be tabled by the vote of a simple majority, and because there are fifty-five Republican senators, the ruling would be upheld. And, boom, that would be that--a piece of procedural ordnance so devastating in its effects and its aftermath that it has been nicknamed "the nuclear option."

The point-of-order strategem would nuke not only the particular filibuster against which it was deployed but all future filibusters against judicial nominees. It would also put an end to any hope of preventing Bush from filling Supreme Court vacancies with clones of his proclaimed judicial ideal, Antonin Scalia, whose activities last week included (a) angrily denouncing his brother and sister Justices for removing the United States from the short list of countries (the others include Iran and China) in which the execution of minors is legally sanctioned, and (b) calling it a "fact" that "government derives its authority from God"--as opposed to, say, the consent of the governed.

The filibuster has been around in one form or another since 1806, when the Senate absent-mindedly neglected to readopt a rule allowing a simple majority to move the previous question. It has been a favored tactic of conservatives of a particularly hard-shelled type, who have used it in the service, successively, of preserving slavery, perpetuating white supremacy, and frustrating what Lady Bracknell disapprovingly called "social legislation." By the same token, liberals, historically, have passionately called for its abolition. Lately, the roles have reversed. Now it's conservatives who indignantly denounce the filibuster as undemocratic. And, oddly, they're right--sort of.

The ...