Nuclear-Free Zone

This is the first of an occasional series in which members of the editorial board voice their disagreement with the official position of the newspaper. Although the board is responsible for every unsigned opinion that appears in this space, not every member agrees with every editorial.

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The argument that the Senate filibuster is anti-democratic is both logical and appealing. It is also completely out of context, which is why getting rid of the filibuster now, as this page has argued (“Nuke the Filibuster,” April 26) would be a terrible mistake.

There can be no doubt that the history of the filibuster is disgraceful. No senator today would defend its use in blocking 1960s civil rights legislation. Nor is there any doubt that the practice itself, in a literal sense, has already died; the old recipe-reading, storytelling, cot-by-the-desk filibuster no longer exists. Once one side threatens to filibuster, both sides act as though it had materialized.

Which is precisely the reason the so-called nuclear option is so undesirable. Just as real political decisions are built around the filibuster’s theoretical existence, its disappearance will have actual, harmful consequences.

Consider the current circumstances. President Bush’s controversial nominations -- Janice Rogers Brown, Priscilla R. Owen, William H. Pryor Jr. among them -- were made with a political constituency in mind. These judges are friendly to a deeper union of church and state. Well to the right of even their conservative colleagues, they satisfy anti-abortion, anti-homosexual, anti-regulatory absolutists.

The Bush administration nominates them and its Senate allies fight for them because they realize that even a losing battle will win them support with their ideological base. Meanwhile, Republican moderates such as Sens. Lincoln Chafee of Rhode Island, George V. Voinovich of Ohio and Susan Collins and Olympia J. Snowe of Maine have little incentive to lobby the White House for more measured judicial nominees. They know they’ll probably never have to vote.

So what happens when the filibuster -- or the mere possibility of a filibuster -- goes away? Perhaps these moderates would have to act on their beliefs. Perhaps the White House would be forced to nominate judges with more mainstream appeal. Or perhaps it would name judges to win the approval only of the 51 most conservative senators.

But this is speculation. If the Senate “nukes” the filibuster, the only thing that can be said for sure is that some judges will be named to the federal bench who would not otherwise have been confirmed.

In the here and now, the only honorable path would be to grandfather the current nominations and apply the change to the future. Preferably to the next presidency, to give voters a chance to absorb the change.

Of course, it is also reasonable to argue that the filibuster is a check on the tyranny of the majority, and that it is necessary in the Senate, which was designed to be the more deliberative chamber of Congress. That, however, is on the theoretical side of things.

Everyone can agree that the existence of the filibuster has distorted the nomination process. What its opponents fail to realize -- or admit -- is that getting rid of the filibuster now, in the middle of a presidential term and in the middle of nomination battles, would cement that distortion into the courts for years. -- Judy Dugan