Senate rule change would end deadlock

This business of using judicial nominations for political fodder isn't being resolved. Thanks to U.S. Senate rules, the minority party can filibuster the president's choice for any post in the federal judiciary, and it takes 60 votes to stop a filibuster.

While Republicans hold a majority in the Senate, there are only 51 of them, and they haven't been able to muster support from enough Democrats to break the filibuster stranglehold that has kept two appointees from being confirmed. (The Senate has confirmed 132 of President Bush's appointments since he took office in 1993.)

The reasons for the hard line being taken by the Democrats is, for the most part, a power play. The parliamentary maneuvering has little, if anything, to do with the fitness of certain nominees to be on the federal bench. And that ought to be the test. But minority parties have always found that throwing a monkey wrench into whatever the majority party wants is a good tool for preserving the minority's clout.

This is why Sen. Olympia Snowe, a Maine Republican, expressed a cautious note this week on a plan approved by the Republican majority on the Senate Rules Committee to change the number of votes needed to end a filibuster to a simple majority -- 51 -- instead of the current 60. "If some day we are in the minority, is it the type of rule we would want to live by?" she asked.

The likelihood of passing such a monumental rule change is very unlikely. Just as there aren't enough votes to end a Democratic filibuster, there aren't enough votes to change the rule either in a straight-out vote -- a process that requires a two-thirds majority, or 67 votes.

There is a way to get the rule changed. That would be to challenge the constitutionality of filibusters on the Senate floor. The outcome of such a challenge would rest on a simple majority. But Republicans are reluctant to use what is called "the nuclear option" because it would deepen the current partisan divide and damage the working relations between Democrats and Republicans.

All of this takes on even more importance when the stakes are raised to the nomination of a Supreme Court justice. The high court has just ended its term, and there have been no announcements that any of the justices plan to retire, although such an announcement continues to be a possibility.

In anticipation of a Supreme Court vacancy, Democratic Sen. Tom Daschle recently urged the Bush administration to consult with senators rather than make a divisive nomination.

Presidents in the past have routinely visited with senators before making nominations, and there is every likelihood that Bush would do the same. But there was a harder edge to Daschle's request, one that implied any Bush nominee not blessed by Democrats in advance would be doomed to the filibuster limbo.

That's not the way advise and consent works. The president nominates. The Senate confirms. If senators believe a nominee is unfit, they should vote against confirmation. But the real issue isn't fitness. It's ideology. And Democrats fear that Bush will create a conservative court if only a couple of justices are replaced.

The issue of how to handle the filibuster rule is a sensitive one, but it is only logical that presidential nominees should be given a straight up or down vote without a 60-vote shield. If Republicans think parliamentary rules must be preserved to protect them when they are in the minority, they are no better than the Democrats against whom they rail for blocking Bush's judicial nominees.

Change the rule. Then vote.