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By Root 1417 0

to pass that President Bush—emboldened by a bigger Republican majority in the Senate and his self-proclaimed mandate—decided in the first few weeks of his second term to renominate seven previously filibustered judges. As a poke in the eye to the Democrats, it produced the desired response. Democratic Leader Harry Reid called it “a big wet kiss to the far right” and renewed the threat of a filibuster. Advocacy groups on the left and the right rushed to their posts and sent out all-points alerts, dispatching emails and direct mail that implored donors to fund the air wars to come. Republicans, sensing that this was the time to go in for the kill, announced that if Democrats continued in their obstructionist ways, they would have no choice but to invoke the dreaded “nuclear option,” a novel procedural maneuver that would involve the Senate’s presiding officer (perhaps Vice President Cheney himself) ignoring the opinion of the Senate parliamentarian, breaking two hundred years of Senate precedent, and deciding, with a simple bang of the gavel, that the use of filibusters was no longer permissible under the Senate rules—at least when it came to judicial nominations.

To me, the threat to eliminate the filibuster on judicial nominations was just one more example of Republicans changing the rules in the middle of the game. Moreover, a good argument could be made that a vote on judicial nominations was precisely the situation where the filibuster’s supermajority requirement made sense: Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president—and benefits our democracy—to find moderate nominees who can garner some measure of bipartisan support. Few of the Bush nominees in question fell into the “moderate” category; rather, they showed a pattern of hostility toward civil rights, privacy, and checks on executive power that put them to the right of even most Republican judges (one particularly troubling nominee had derisively called Social Security and other New Deal programs “the triumph of our own socialist revolution”).

Still, I remember muffling a laugh the first time I heard the term “nuclear option.” It seemed to perfectly capture the loss of perspective that had come to characterize judicial confirmations, part of the spin-fest that permitted groups on the left to run ads featuring scenes of Jimmy Stewart’s Mr. Smith Goes to Washington without any mention that Strom Thurmond and Jim Eastland had played Mr. Smith in real life; the shameless mythologizing that allowed Southern Republicans to rise on the Senate floor and somberly intone about the impropriety of filibusters, without even a peep of acknowledgment that it was the politicians from their states—their direct political forebears—who had perfected the art for a malicious cause.

Not many of my fellow Democrats appreciated the irony. As the judicial confirmation process began heating up, I had a conversation with a friend in which I admitted concern with some of the strategies we were using to discredit and block nominees. I had no doubt of the damage that some of Bush’s judicial nominees might do; I would support the filibuster of some of these judges, if only to signal to the White House the need to moderate its next selections. But elections ultimately meant something, I told my friend. Instead of relying on Senate procedures, there was one way to ensure that judges on the bench reflected our values, and that was to win at the polls.

My friend shook her head vehemently. “Do you really think that if the situations were reversed, Republicans would have any qualms about using the filibuster?” she asked.

I didn’t. And yet I doubted that our use of the filibuster would dispel the image of Democrats always being on the defensive—a perception that we used the courts and lawyers and procedural tricks to avoid having to win over popular opinion. The perception wasn’t entirely fair: Republicans no less than Democrats often asked the courts to overturn democratic decisions (like campaign finance laws)