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Concept of Compromise Is Pushed Off Senate’s Center Stage

Lyndon Johnson must be spinning in his grave.

Bob Dole, Howard Baker and George Mitchell must be spinning in the comfy leather chairs of the big-name law firms they call home these days.

Is it possible that any of these titanic Senate majority leaders from years past would abdicate responsibility for resolving the confrontation over judicial nominations, as the job’s current occupant, Tennessee Republican Bill Frist, has done?

Nothing may be more remarkable about this Senate showdown than who is trying to defuse it. Frist, ostensibly the man with the gavel, has thrown up his hands and insisted he cannot reach an agreement with Minority Leader Harry Reid (D-Nev.) over the Democrats’ use of the filibuster, a procedural maneuver that allows 41 senators to prevent a floor vote, against some of President Bush’s judicial nominees.

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That’s left an assortment of mavericks, malcontents, back-benchers, gray eminences and ideological heretics from the two parties to try to settle an unnecessary crisis that could fundamentally alter the Senate’s character.

Over the last week, a floating group of about a dozen Democratic and Republican senators, including Republicans John McCain of Arizona and John W. Warner of Virginia, and Democrats Ben Nelson of Nebraska and Mark Pryor of Arkansas, have neared an agreement that would preempt a Republican effort this week to ban the filibuster for judicial nominations.

Under the deal, at least six Republicans would commit to voting against the filibuster ban. In return, at least five Democrats would commit to allowing an up-or-down floor vote on five of seven Bush appellate court nominees Democrats have blocked; the Democrats would also commit to using the filibuster against future court nominees only in “extraordinary circumstances.”

The tactical brilliance of this deal is that it is self-executing: It would work even if no senators beyond the negotiators supported it. Republicans have 55 Senate seats; that means the GOP could not muster a majority for the filibuster ban if six Republicans opposed it. Democrats control 45 Senate votes (counting Vermont independent James M. Jeffords). If five Democrats dissented, the party could not sustain filibusters against Bush’s judicial appointments.

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This isn’t an easy pill for either side. Democrats would allow the confirmation of Bush nominees such as Texas Supreme Court Justice Priscilla R. Owen and California Supreme Court Justice Janice Rogers Brown that most strongly oppose. Republicans would accept a continued Democratic right to filibuster if Bush nominates a Supreme Court justice widely perceived as extreme; that could leave Democrats some leverage to nudge Bush toward a more moderate choice when the next vacancy opens. Reinforcing that pressure, the current compromise would encourage Bush to consult the Senate, through means still under discussion, more closely on future judicial nominations.

Reid and Frist have kept their distance from these negotiations. But participants perceive a distinction in their attitudes. Aides to Democrats involved see Reid exercising a kind of benign neglect. He has subtly encouraged the talks by not discouraging them. He has pressured Democrats on only one point: trying to secure the most ironclad guarantee possible from the Republicans not to support a filibuster ban later this congressional session.

Republicans involved, by contrast, believe Frist is actively discouraging a deal. One senior advisor to a key GOP participant says Frist has even suggested to some Republicans that he would rather lose a filibuster ban on the floor than preempt a vote with a negotiated agreement.

In both parties, the conventional wisdom is that Frist is pushing so hard for a vote because he’s courting social conservatives, the most ardent supporters of the filibuster ban, for his likely 2008 presidential bid. By this theory, Frist can’t accept any compromise that would allow potential 2008 rivals like Sen. Rick Santorum (R-Pa.) or Sam Brownback (R-Kan.) to accuse him of surrendering to Democrats.

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“Frist has got so many people [looking over his shoulder] ... that he doesn’t have any flexibility,” says veteran GOP pollster Tony Fabrizio.

Frist’s presidential ambitions are undoubtedly complicating the situation. But it may be too comforting to assume he would be offering an olive branch if he were not trying to move across Pennsylvania Avenue. In today’s bitter climate, most Senate leaders might be reluctant to forge the difficult consensus necessary to resolve this sort of clash.

One reason compromise has become virtually extinct in the House of Representatives is that so many members are elected from reliably safe Republican or Democratic seats. That reduces their incentive for cooperation because they face a greater risk of losing a primary by compromising too much than a general election by compromising too little.

Something similar is happening in the Senate. More senators from each side today represent states that lean solidly toward their party in presidential voting. That has reduced the number of cross-pressured senators -- Southern Democrats or Northeastern Republicans -- inclined to compromise in Washington because they believe it broadens their support at home. The Senate, looking more like the House, seems increasingly driven by true believers who equate compromise with capitulation and respond to interest groups demanding total war.

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A great majority leader like Johnson or Dole might have resisted those pressures to protect the Senate’s historical role as a forge for consensus in a diverse society. Frist hasn’t filled those big shoes, but his failure may be institutional as well as personal. His deferral to the bipartisan negotiators raises the frightening possibility that compromise has become such a fringe idea in contemporary Washington that only politicians on the parties’ edges can afford to pursue it.

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Ronald Brownstein’s column appears every Monday. See current and past Brownstein columns on The Times’ website at www.latimes.com/brownstein.


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