Beware of changing cloture

If Senate Republicans change the filibuster rule to permit closure on judicial nominations by a simple majority vote, they will be undermining their own president and their electoral fortunes for years to come.

The simple truth is that the president needs the threat of a Democratic filibuster to save himself from his party’s right wing. It is only by pointing to the threat of Democratic intransigence that Bush can justify appointing a moderate conservative, instead of a doctrinaire one, to the Supreme Court.
If Senate Republicans change the filibuster rule to permit closure on judicial nominations by a simple majority vote, they will be undermining their own president and their electoral fortunes for years to come.

The simple truth is that the president needs the threat of a Democratic filibuster to save himself from his party’s right wing. It is only by pointing to the threat of Democratic intransigence that Bush can justify appointing a moderate conservative, instead of a doctrinaire one, to the Supreme Court.

If the filibuster is made impotent by the rule change Republicans are considering, the president will have no political choice but to charge straight ahead into the kind of confrontation that could ruin his administration and give his party the kind of black eye from which it would not recover easily.

The last election was a mandate to be tough in the war on terror. It was not about moral issues. The president didn’t mention the word “abortion” much during the campaign and focused largely on his plans to keep America safe. To the extent that the vote was a mandate for any social issue, it was a repudiation of gay marriage, not a vindication of restrictions on the right to choose.

Indeed, voters oppose courts’ imposing gay marriage for the same reason that they oppose a reversal of Roe v. Wade — they do not support it when judges try to impose their own views on the social consensus. Just as most voters want marriage to remain strictly heterosexual, so most want abortion to continue to be legal, albeit with restrictions. While parental notification and consent, restrictions on late abortions and limitations on Medicaid funding all meet with popular approval, the voters will treat very unkindly any effort to reverse the essential findings of Roe.

If President Bush nominates a Supreme Court justice who is a conservative in the mode of Sandra Day O’Connor or Anthony Kennedy, he will meet with a broad public level of support. But if he tries to add another knee-jerk reactionary to the court — and jams the nomination through by changing the rules to block a Democratic filibuster — he will shatter the national moderate consensus that impelled his reelection. The nation will not tolerate seeing an electoral victory impelled by terrorism hijacked to put another William Rehnquist, Antonin Scalia or Clarence Thomas on the court. If Bush tries it, he will not be able to govern effectively for the balance of his term.

Just as FDR lost his political momentum when he tried to pack the court after his landslide victory in 1936, so Bush would never live down what voters would see as an unfair revision of the rules to pack the court with conservatives.

The filibuster has become an accepted institution in our society. With our intense partisanship — with blue and red states glaring at one another — voters want the checks and balances a filibuster offers. No longer a device to block civil-rights legislation, it is now a needed tactic to moderate the agendas of both political parties.

If Republicans change the rule to eliminate the 60-vote cloture requirement and then use the resulting power to jam right-wingers down the nation’s throat, defying popular views on choice, they will incur the enmity of all Americans.

On the other hand, if the filibuster rule remains in force at 60 votes and Bush nominates conservatives to the court, Americans will not feel it is a sneaky maneuver. They understand that Bush is pro-life and expect him to name judges who are as conservative as the Democrats will permit. But to change the rules, midstream, as FDR tried to do in 1936, having made no mention of his intentions during the entire fall campaign, would be seen as dirty pool by moderate voters.

Had the Republican Party openly articulated its decision to change the filibuster rule during the campaign and kindled a national debate on the subject, voters would shrug their shoulders and figure that they have to respect the will of the electorate.
But the GOP hid its plans, never mentioning them until after the election.

Republicans in swing states, such as Sens.-elect Richard Burr (N.C.), John Thune (S.D.) and Mel Martinez (Fla.), never alluded to any change in the cloture rules during their campaigns. Voters would feel aggrieved if they try to change the rules now that the votes are safely counted.
Morris is the author of Rewriting History, a rebuttal of Sen. Hillary Clinton’s (D-N.Y.) memoir, Living History.