Democracy Gets a Reprieve

Editorial

Published May 27, 2005, issue of May 27, 2005.
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Democracy got a reprieve in Washington this week, and America got some new heroes, when 14 United States senators — seven Democrats and seven Republicans — broke with their parties to forge a compromise that forestalled a Capitol Hill meltdown over judicial nominations.

The heroism of the 14 is not of the sort we’re most accustomed to celebrating. They didn’t charge into battle to defend their comrades or throw themselves on their swords for some undying, indivisible principle. On the contrary, they each compromised on a matter of cherished principle, in pursuit of a gray abstraction called democratic process.

Compromise and heroism are normally taken to be opposites. But in the current atmosphere of ideological polarization, only compromise held open the possibility of staving off meltdown. Someone needed to step into the middle and end the madness, even at the risk of defying their parties, their friends and their own values. That took courage.

Before the compromise, the Republican leadership was planning an unprecedented maneuver to change Senate rules by a simple majority. Their goal was to strip the Democrats of the right to filibuster judicial nominees, one of the last bits of minority leverage in the face of the Bush presidential steamroller. The maneuver was probably illegal, but with partisan Republicans controlling every organ of government, including the Supreme Court, the Democrats could have done little to stop it. In reply, Democrats were threatening to tie up the Senate in procedural knots and bring it to a halt.

Instead, the 14 centrists stepped in at the 11th hour. Seven Republicans promised to vote against the filibuster ban, denying their party’s leadership the 51 votes it sought to change the rules. In return, seven Democrats promised to vote for cloture — guaranteeing the Republicans the 60 votes needed to cut off debate — on three specific nominations.

Each side gave up something big. The seven Democrats agreed to guarantee confirmation of at least three deeply conservative federal judges that their party fought for years to keep off the bench. The seven Republicans agreed to protect the continued ability of the minority Democrats to block President Bush’s judicial nominees. All 14 left their respective parties’ leaders and core constituencies fuming.

The agreement is a fragile one, because it doesn’t define the “extraordinary circumstances” that would justify a future filibuster. Accordingly, the 14 have yet to face the true test of their resolve.

As things now stand, the White House and its Senate allies seem intent on continuing their push for a radically conservative federal bench. Each new nomination will put the 14 to the test: Either the seven Democrats must stand up to their party colleagues by voting down a filibuster, or the seven Republicans must face their own party’s wrath by conceding that the case was indeed “extraordinary.”

The center cannot hold unless the culture around it changes, and that must begin at the top. The White House must change its ways and begin consulting with senators of both parties before submitting nominations it knows will outrage liberals.

That’s the point of the last and most crucial paragraph in the centrists’ statement. In a direct challenge to Bush, the 14 recalled the Constitution’s requirement that the president seek the Senate’s “Advice” in naming judges. “We encourage the Executive branch of government,” they wrote, “to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.”

“Such a return to the early practices of our government,” they concluded, “may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.”

That is a challenge not just to the president, but to all of us. Democracy depends on involved citizens who are willing to stand up and fight — not only for the things they believe in, but for the democratic process itself. It’s past time for activist groups, whatever their cause — especially advocates for minority rights, individual freedom and Jewish rights — to put that item on their agenda. They need to press both the president and the Democrats to come up with judicial nominees who can be accepted by both sides. They need to stand up for those centrist senators who will be targeted by their parties’ extremists in the months ahead.

Most of all, they need to refocus on the health of American democracy. We’re thinking in particular of Jewish advocacy groups and communal agencies, which have shown a reluctance in recent years to wade into hot-button domestic policy debates that might put them at odds with the White House or with their new friends on the religious right. They’ve argued that their particularist agenda, focused mainly on protecting Israel and fighting terrorism and its sponsors, is more important than theoretical arguments about democracy at home. The message from the center of the Senate this week was a big, loud warning bell. It’s time to get back into the fight.






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