A Center Forms to Outflank Left, Right

Times Staff Writers

Monday’s last-ditch compromise on confirming federal judges was a striking reassertion of the power of the political center in a bitterly polarized environment, pulling the Senate back from the brink of a crisis that threatened to paralyze the institution and dramatically change its character.

The sternest test of the fragile accord will come when the Senate takes up the next nomination to the Supreme Court, possibly as early as this summer, and partisan pressures intensify.

Still, the agreement -- in which seven moderate Republicans broke ranks from their party and joined seven moderate Democrats -- is an unusual challenge to Bush and GOP leaders who until now have commanded remarkable party discipline on a wide range of issues. It throws a rare obstacle in the Republicans’ steady march toward the overarching goal of the Bush presidency: to parlay the party’s slim majority in the country into major changes in policy and in government institutions for years to come.


“In a Senate that is increasingly polarized, the bipartisan center held,” said Sen. Joe Lieberman (D-Conn.).

The compromise apparently will prevent Senate Majority Leader Bill Frist (R-Tenn.) from implementing a ban on judicial filibusters -- a Senate rules change known as the “nuclear option” for its potentially explosive political impact. The ban was expected to make it easier for Bush to put more conservative judges on the bench for lifetime appointments.

But the compromise -- a middle ground between Republicans who want to ban judicial filibusters and Democrats who want to retain them -- includes two big loopholes that could come back to haunt the Senate: Democrats reserved the right to filibuster future judicial nominations in “extraordinary circumstances.” Republicans kept the power to revisit the nuclear option if they believe Democrats are filibustering in circumstances that do not reach that standard.

If Bush chooses a very conservative nominee to fill the next Supreme Court vacancy -- as is expected this summer, with the likely retirement of Chief Justice William H. Rehnquist -- Democrats will come under renewed pressure to reassert their filibuster right.

And if that happens, Republicans say, they may resurrect the effort to ban that right.

Frist, who was under heavy pressure from conservative and evangelical groups to brook no compromise, said he was disappointed that the agreement still “fell short” of the principal demand that no nominee should be filibustered.

The compromise calls for guaranteeing votes on three of five contested appellate court nominees Democrats have blocked, some for as long as four years.


Illustrating the pressure on Frist and other Senate Republicans, Gary Bauer, a conservative activist and unsuccessful candidate for president in 2000, immediately denounced the deal as a sellout.

“The Republicans who lent their names to this travesty have undercut their president as well as millions of their most loyal voters,” he said. “Shame on them all.”

But a Republican strategist familiar with White House thinking said conservatives should look at the bright side of the compromise: It delivers votes on three stalled nominees and leaves open the possibility of returning to the nuclear option.

“You get something you wouldn’t otherwise have, and you would not have given away anything on a future Supreme Court nominee when it comes to filibusters,” said the strategist, who spoke on condition of anonymity. “It’s not necessarily a blow we couldn’t recover from.”

This is not the first time that Republicans, flexing the muscle that comes from control of Congress and the White House, have been forced to pull back. House Republican leaders had to retreat this year from an effort to rewrite congressional ethics rules, an action seen by critics as an attempt to protect House Majority Leader Tom DeLay (R-Texas).

For the senators who sought an alternative to the judicial filibuster ban, agreement did not come easily -- even though the 14 who negotiated the compromise were among the most accommodating centrists in the upper chamber and included several Republicans who regularly buck their party leaders.


They still had to struggle to overcome the partisan strains and mistrust that have widened the chasm between the parties in recent years. In essence, they tried to codify habits of trust that have been eroded by battles over President Clinton’s 1998 impeachment, the divisive 2000 presidential election and the war in Iraq.

“What they are trying to do is memorialize trust,” said a Republican congressional aide familiar with the negotiations who asked not to be identified.

Negotiators’ success in drafting such an accord is a rare victory for the moderate wing of the GOP, which has increasingly bridled under pressure to hew to the conservative party line on such matters as cutting taxes, overhauling Social Security and confirming Bush’s controversial nominee for ambassador to the United Nations, John R. Bolton.

Their success in this case may embolden moderate Republicans to come together and challenge their party’s conservative leaders on other issues.

“My hope is this can be a model for us as we go forward,” said Sen. Susan Collins (R-Maine), one of the negotiators of the compromise.

Indeed, moderate Republicans in the House are expected to mount an unusual show of force today and vote for a bill liberalizing Bush’s policy on stem cell research -- despite his veto threat.


The judicial compromise also was a remarkable challenge to both party’s leaders -- especially to Frist, who believed he had the votes to approve the filibuster ban until the bipartisan compromise was announced.

By spearheading the drive to ban the judicial filibusters, Frist has been applauded by evangelical conservatives whose support he will need if he seeks his party’s presidential nomination in 2008. It remains to be seen whether the senator’s efforts will translate into strong support for his candidacy in that community -- or whether activists will hold it against him for being unable to keep party moderates in line and deliver the ban.

A leading architect of the compromise was Sen. John McCain (R-Ariz.), a potential rival to Frist in 2008. Although McCain was never the darling of religious conservatives, his role in crafting the compromise will probably antagonize them further. Social conservatives in Iowa and New Hampshire have issued letters opposing any compromise on the issue.

For their part, Democratic activists had their own problems with the compromise because it assured votes on three nominees they vociferously opposed. The Alliance for Justice, a liberal group opposed to Bush’s contested nominees, said it was “very disappointed with the decision to move these extremist nominees one step closer to confirmation.”

That points to a broader political risk faced by both parties: that the compromise will dispirit the activist base they want to mobilize for the 2006 and ’08 elections.

“Both parties want their bases to be totally on fire going into next year,” Bauer said.

But for voters in the political middle, the compromise could help Congress slow a worrisome trend in public opinion. Recent polls have found that the public’s assessment of Congress’ job performance has plummeted, mostly because the two parties are seen as bickering over issues that seem far removed from kitchen-table concerns.


Tony Fabrizio, a GOP pollster who worked for Bob Dole’s 1996 presidential campaign, said those opinion trends pose more political risk for Republicans.

“We are the majority, we have the most to lose,” Fabrizio said. “We are fighting over 10 judges. Meanwhile, gasoline prices are up, inflation keeps on moving.... It doesn’t make sense to the average person.”