They know the stakes, all right

Posted: May 13, 2003 12:00 AM

A word needs to be said in praise -- yes, I said praise -- of the Democratic senators now blockading the confirmation of judicial nominees Miguel Estrada and Priscilla Owen. A word not in praise of the senators' motives, which are grimy, or of their political ideology, which stinks. No, a word in praise of their native cunning.

Give credit where it's due. The Daschle Democrats didn't come to town picking their teeth in public and mismatching their socks. They know the stakes. Let the Bush administration populate the federal bench with judges unwilling to sweep precedent aside, disinclined to substitute their own views for those of elected lawmakers -- get a bunch like that on the bench, and liberalism (the party's regnant philosophy since Lyndon Johnson) loses half its punch.

That's the kind of judge Robert Bork was. It's the kind Daschleites suspect -- perhaps rightly -- that Owen and Estrada would prove to be.

The liberal agenda has had just one moment in the political sun during the past half century. This was during the blazing noon of the Great Society, when Congress was eager to help President Johnson work for social transformation and the abolition of poverty. This moment quickly passed. Americans, 1776 aside, lack the revolutionary temperament. Not so, these days, their self-appointed intelligentsia, who tend to see federal judges, and especially Supreme Court justices, as a kind of progressive vanguard, battering at the ramparts of privilege and oppression, irrespective of what elected politicians may do or not do.

The paramount example is Roe vs. Wade. It would have taken forever, working through the political process, to establish a national right to abortion. A 7-2 Supreme Court majority, in 1973, made a morning's work of it.

But conservatives aren't dumb either. For 30 years, since the Nixon administration, a counteroffensive has been under way: an attempt to supplant "activist" judges with traditionalists who see the law as organic, a mighty, slow-growing oak tree you don't want to hew down for firewood on a passing whim. Judges like Estrada and Owen are traditionalists -- or at least the Daschelites suspect them of that odious offense.

This means no way -- none! -- are the Daschleites letting those folks on the federal bench. They'll filibuster, they will, to the last sibilant whisper of a Robert Byrd oration on the glory of Greece and the grandeur of Rome. On Daschle, on Schumer, on Boxer and Clinton ... ! Do whatcha gotta.

The filibuster, ah, yes: key weapon in the Southern arsenal against passage, during the '50s and '60s, of civil rights legislation. From Harry Byrd of Virginia, trying to block open accommodation laws to Robert Byrd of West Virginia, conspiring to knock down traditionalist judges -- it has been some journey.

Republicans this week are talking about "filibuster reform" -- changing the rules that allow a minority to keep up the windbaggery, thus preventing a vote they would lose. As President Bush noted last week: "We are facing a crisis in the Senate and therefore a crisis in our judiciary. Highly qualified judicial nominees are waiting years to get an up-or-down vote in the United States Senate."

Well, you know what, that's how the Daschleites like it. They understand the stakes. Traditionalists on the bench? It all could end with -- we near the nub now -- the toppling of that monument to judicial we-know-bestism, Roe vs. Wade.

The end of Roe vs. Wade, and the return of the human life question to state legislatures, as before, would unhinge a key constituency of the Democratic coalition -- the feminist hierarchy, which doesn't want to deal with grubby legislators. Let the people's representatives decide? The horror, the horror! Let's keep this thing as far away from the people as possible. If that means reviving the stalling tactics of the Southern Bourbons during the civil rights era, so be it.

Now, if from the filibuster squad we could only have a little honesty about motives ... ! Best, while we all wait for that unlikely admission, not to leave the collard greens simmering.