Raw Deal

This article is reprinted from The American Prospect.

The Washington press loves the myth that polarization is what ails American politics and that bipartisan moderation will save the day. The high drama of the "nuclear option" averted by brave moderates fits the script perfectly.

Republican Senate leader Bill Frist, wanting court nominees to sail through Senate confirmation on a simple majority vote, threatened to scrap the filibuster by rigging the Senate rules. Just hours before this nuclear option was to be exercised, 14 moderates of both parties, after marathon negotiations, fashioned a compromise in which three controversial nominees get an immediate floor vote, and the filibuster is preserved, sort of.

Initial press accounts offered hosannas to moderation. Several reports painted Frist as isolated and humiliated, and right-wing groups furious. The only problem is that this happy spin is almost totally wrong.

Consider what actually happened.

By threatening what amounted to a parliamentary coup d'etat, Frist got nearly everything he wanted. A Senate rules change requires a two-thirds vote. Frist's so called nuclear option would have had the leadership rule that the filibuster can be scrapped for judicial nominees; then a simple majority of 51 senators would have upheld the parliamentary ruling. End of filibuster.

Faced with the risk of bad publicity for this show of crude force, several Republicans brokered a face-saver to achieve the substantive result -- confirmation of extremist nominees -- without officially killing the filibuster this week. It worked. This was no mutiny against the Senate leader; it was merely a change of tactic.

What does the vaunted compromise actually do? First, it guarantees a quick vote on three of the most reactionary judges ever to come before the Senate -- Janice Rogers Brown, William Pryor, and Priscilla Owen. Democratic resistance to these appellate nominees caused Frist to go nuclear in the first place. They will now be confirmed, and other extremist nominees will keep coming.

Second, the deal commits the Republicans to relent on the threat to scrap the filibuster -- but only for now. Frist can revive the nuclear option any time he likes, say, when the first Bush nominee to the Supreme Court comes before the Senate later this year. Frist can continue to hold this threat over the heads of Democrats, who are committed by the deal to limit their use of filibusters to extraordinary circumstances.

If you believe that the Republican negotiators did not clear this deal with Frist, gentle reader, you are naïve. If Frist took a bullet here, it was the mildest of flesh wounds, on behalf of his own cause. Far-right groups initially complained, until it was explained to them that they'd won. Liberal groups proclaimed victory because they couldn't very well declare that they'd been rolled. Remember what Pyrrhus said? "Another such victory and I shall be ruined."

The Republican propaganda machine has been expressing outrage that filibusters have denied Bush some court nominees. Republicans denied Bill Clinton even more nominees, not by filibustering but by refusing to let nominations out of committee. And Clinton tended to appoint genuine moderates, while Bush's are mostly far-right conservatives.

If the Republicans who brokered this window-dressing deal were truly independent, they'd vote against confirmation of extremist nominees on the Senate floor. Let's see whether "moderate" Republicans like Susan Collins and Olympia Snowe of Maine, John McCain of Arizona, and Lincoln Chafee of Rhode Island actually oppose any of these nominees. Mostly, these people posture moderate and then do Bush's bidding. No profiles in courage here.

The nuclear option is a fitting analogy. Throughout the Cold War, the two super-powers never used nuclear weapons. It was the threat to use them that produced the political power. Frist, likewise, did not have to blow up a long-established Senate norm, but by brandishing threats he got his way just the same.