The deal

Ross Mackenzie
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Posted: May 26, 2005 12:00 AM

Left-right rhetoric frames the judicial nominations debate - and, lamentably, for good reason. Even with Monday's 14-senator agreement the debate, the power war between liberal and conservative goes on.

Both ideological sides have transgressed - that's both sides.

Yet on the larger landscape, we have arrived at this juncture in American ideology primarily as a consequence of the abuses of the left over many years. In a strict sense, the excesses of the right have been reactions to - pay-back, retaliation for - the unwillingness of the left to moderate in the retention and exercise of political power.

First the left lost presidential power - or in achieving it proved inept (Jimmy Carter) or hubristic and solipsistic (Bill Clinton). Then, as the nation began turning more conservative and Republican, the Democratic left began losing legislative power, with today's still thin but growing Republican margins in both congressional houses.

Along the road, the left perceived its future relevance in doubt, and so built principally in Washington's K Street neighborhood a new industry dedicated to preserving its hegemony in the last of the branches, the federal courts - from which it could legislate and thereby maintain power, albeit in a different way.

This new industry or lobby - supported by other extralegal entities long adept at shaping public opinion (entertainment, establishment churches, the mainline media) - combed every conceivable corner of every federal judicial nominee's record for any ethical or temperamental transgression, or any example of ideological deviation from a left-defined "moderate" norm.

With the vilest smears, the left killed the nomination of Robert Bork, almost killed the nomination of Clarence Thomas, and has stopped or stymied the nominations of good people whose sole sin generally has been to be defined by the left as ideologically unacceptable to its own peculiar view of right reason.

And so we have arrived at the present hour, with Monday's bipartisan Senate agreement accepting three of President Bush's appellate nominees, rejecting two, and leaving the fate of others to the "trust" and "good faith" of the members of the oldest old-boys club since Rome - whose Senate club itself was not averse to knifings of mere ideologies but of caesars.

One may argue that a compromise is durable to the extent its signers make genuine sacrifices. In this compromise, conservatives and moderates have sacrificed resorting to the constitutional option that would confirm judicial nominees by a simple majority. The left has sacrificed three nominees it would have lost anyway, while thwarting two and retaining the right to apply a Senate rule of a required supermajority (60 percent to break a filibuster) not only to all other district and appellate nominees, but to nominees to the big enchilada - the Supreme Court.

Virginia's Sen. George Allen probably got it right in terming the compromise "a major disappointment on principle" for anyone believing nominees "should be accorded the fairness and due process of an up-or-down vote." He added: "It is not a great deal for two nominees who have been accorded a nice wake having been thrown overboard at sea. (And) everyone should also clearly see that ultimately, nothing has been settled when a vacancy arises on the U.S. Supreme Court."

That moment, or before, is when the test of trust and good faith will come in a Senate reflecting the increasing polarization of the nation at large: a retreat by the dwindling ideological minority into ever meaner personal destruction as its power ebbs.

Ideologically, in the nation and in the Senate, what of moderation and centrism - and genuine bipartisanship - is left anymore? The answer will come in the handling of subsequent appellate nominees to go to the Senate floor - and in the handling of the next nominee to the Supreme Court.

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Ronald Reagan, discussing the SALT II nuclear weapons treaty and the Soviets, famously fashioned the phrase "trust but verify." Soon enough the nation will verify precisely how much trust the Democratic left invests in a deal allowing it to continue to abuse the Senate's filibuster rule to throttle good conservative and moderate people sent up as federal judicial nominees.