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It's No Victory

By defining the issue as saving the filibuster, Democrats once again made the issue one of means -- while the Republicans kept their eye on the prize of ends.
 
 
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When I received an email from MoveOn.org this week telling me that we should celebrate "our victory" in the filibuster compromise, I realized we had a problem.

The Democrats chose to make the fight on Bush's judicial nominees about saving the filibuster rather than stopping right-wing extremists from being given lifetime appointments to the federal bench. Indeed, in the last two weeks we heard nary a word about the deficiencies and the dangers of the nomination of the Gang of Three: Janice Rogers Brown, William Pryor and Priscilla Owen.

At stake, the Democratic Party encouraged us to believe, was not the future of the federal judiciary but the future of the Senate.

And so, when the Republicans agreed not to eliminate the filibuster (at least this week), and the Democrats agreed to allow Bush's three most extreme judicial nominations to be voted on, many of us cheered the People's Victory. Senator Byrd announced, "We had saved the Republic."

The Democrats focused on means. The Republicans focused on ends. Both won. Why do I think theirs was the more important victory?

The cloture vote on Monday meant the federal judgeship of Priscilla Owen, the first nominee to come before the Senate, would be approved. But under the rules of cloture, the Senate could still spend 30 hours debating her record. But although the Democrats used many hours to educate us about the value of the filibuster, they apparently had little to say about the judicial nominee. In the confirmation process, the Democrats spent an hour or two on Owen's record.

Given this reticence by the Democratic Party to educate people about the dangers to our Republic if individuals like Priscilla Owen get to interpret the law of the land, one can't blame the Americans for thinking that the Democrats' threat to filibuster is simply much ado about nothing.

In 1999, because of serious backlogs due to vacancies on the bench, the Administrative Office of the U.S. Courts declared the court to be in a state of emergency. But the Republicans, even though a minority, refused to allow an up or down vote on President Clinton's middle-of-the-road nominees. Had the Senate confirmed Clinton's nominees, the 5th Circuit Court would now have seven Democrats and nine Republic appointees, rather than the 4-12 split it has now that Owen has been confirmed, according to the Alliance for Justice.

Of course, the Republicans were allowed to exercise this power in 1999, because the majority party were liberals who believed that the means were more important than the ends. Today the Democrats are the minority party, and the majority is anything but liberal.

Minority Leader Harry Reid said he had 49 votes against changing the rules to eliminate the filibuster. If the Democratic Party hadn't blinked, could they have picked up two more moderate Republicans who were unwilling to see the very structure of the Senate shredded in order to pack the judiciary with extremists? We'll never know.

What if the Democrats had lost that vote? Were they then weaponless? Of course not. With unity comes power. They had threatened, vaguely, to "shut down the Senate" if the filibuster were eliminated. That was clearly within their capacity. Each Democratic Senator has at least an hour to speak on any amendment, any bill, any procedural call. That means 44 hours of every week could be spent on just a single motion.

But to shut down the Senate and gain the nation's support, the Democrats first must educate Americans that what they are fighting against are evil ends, not unfair means. The filibuster fight did not serve that educational purpose.

Only when the Democratic Party exhibits real backbone, only when it demonstrates that it is willing to take large individual and collective political risks, only when it is willing to do everything within its power to stop evil, only then will it rally the country to the task of stopping the nationwide lurch toward fanaticism.

David Morris is co-founder and vice president of the Institute for Local Self Reliance in Minneapolis, Minnnesota and director of its New Rules project.