WASHINGTON -- Senators droned on last week, supposedly debating two female nominees for the U.S. appellate bench, but it was a sham. The real issue was the future makeup of the Supreme Court, which explains the audacious Democratic strategy of blocking President Bush's choices for lower courts. The focus on the high court also has resulted in failure so far in seeking a negotiated settlement.
In the 48 years that I have watched senators debate, they usually resemble ships passing in the night -- but never more so than last week. As Democrats engaged in calumny, Republican corrections of their misstatements went unnoted and generally unheard. The real debate was behind closed doors, shaping an agreement that only three judicial nominees need be rejected.
Disagreement came over treatment of imminent Supreme Court nominees. One Republican senator, considered a party-line man, told me he would agree to throw overboard three designated appellate nominees if granted a major concession: a promise never to filibuster the president's Supreme Court choices. But that is a concession not even six Democrats have been willing to make.
Indeed, the question of who shall sit on the Supreme Court is the reason for this crisis. It is the reason key Senate Democrats held an unprecedented meeting in Minority Leader Tom Daschle's office on Jan. 30, 2003. Thanks to Republican discovery of Democratic e-mails, an unprecedented documentary record reveals a pure political power play.
Sen. Edward M. Kennedy, the Senate's 73-year-old liberal lion, has orchestrated a solid Democratic front that has succeeded beyond all expectations. It has kept 16 Bush nominees off the appellate bench, some permanently. But Kennedy went too far. Had he blocked two or three judges, the reaction would have been modest. Judiciary Committee Chairman Arlen Specter, hardly a fire-eating Republican, told the Senate Friday that the nominees are being "held hostage as pawns in a convoluted chess game that is spinning out of control."
If the Daschle-Kennedy power play had been intended to intimidate the Republicans regarding the Supreme Court, it had the opposite effect. Sen. Gordon Smith, a moderate Oregon Republican who had been a "qualified" backer of the "nuclear option" as late as Tuesday, went to the Senate floor Thursday to declare unqualified support.