Dan Rather
COMPROMISE, IT has been said, makes a good umbrella but a poor roof. Little more than a month ago, 14 senators from both sides of the political aisle crafted a compromise that forestalled the so-called nuclear option -- a measure that would have effectively ended filibusters as a tool for blocking floor votes on President Bush's judicial nominees. Now, with the retirement of Supreme Court Justice Sandra Day O'Connor -- and the looming possibility that Chief Justice William Rehnquist, suffering from thyroid cancer, will soon follow suit -- we might be about to witness the limits of compromise. Or, put another way, are we about to see the leaks in the roof of the Senate chambers?
When the 'Gang of 14's' compromise was announced in late May, some expressed relief, while other, more sceptical souls pointed to the apparent flimsiness of one of the compromise's essential planks: that which reserved for the Democratic minority the right to filibuster the president's nominees under "extraordinary circumstances."
And what are extraordinary circumstances? As Democratic Sen. Dianne Feinstein of California -- not one of the 14 -- asked at the time, "Does it mean they have to have violated a law, like a felony, or robbed a bank?" The fact is, she said, "They are different things to different people."
NOMINATION BATTLE
With both conservative and liberal interest groups lining up to make their voices heard in the anticipated nomination battle, the political right and the political left may be able to find consensus on one thing: The first Supreme Court nomination in 11 years (the longest such stretch since the Monroe administration) represents an extraordinary circumstance.
With so many 5-4 court decisions in recent years on issues ranging from abortion to affirmative action and beyond, there is a near-universal sense among the politically attuned that a great deal is at stake.
So what will this mean, in practical terms? Much, of course, depends on President Bush, and whom he nominates to fill Justice O'Connor's seat. Even liberal Senate Democrats seem resigned to the president's naming a conservative to the court. The question then becomes, Just what sort of conservative will he or she be?
For years now, President Bush has answered that question by expressing his admiration for Justices Antonin Scalia and Clarence Thomas.
Though both are indisputably conservative in their judicial opinions, some legal scholars point out that they reach their respective opinions by way of somewhat different conservative legal philosophies. There are other kinds of judicial conservatives, too -- Justice O'Connor herself being an example of yet another strain.
But what seems most important to the interest groups, to the public and to the members of the Senate is not so much a particular judicial philosophy as its likely outcomes.
COMPROMISE
Will we see the 'extraordinary circumstances' clause of the Gang of 14's compromise invoked in the coming confirmation process? That will depend on the guesses that the various concerned groups make about how a nominee's ostensible philosophy will result in court rulings.
Most prospective nominees will also carry with them a 'paper trail' - lower-court decisions, scholarly articles, public statements - that the Senate will use to help divine what kind of future they would have on the court. Even with such tools, though, it is worth noting that a prospective justice's past is not always prologue to his or her Supreme Court decisions.
But regardless of how President Bush's upcoming nomination (or nominations) ultimately affects the United States Supreme Court, it seems likely that it will have an immediate effect on the United States Senate, an institution now sheltered by an umbrella that looks more likely to leak with each passing day.
Dan Rather is television broadcaster (c) 2005 DJR Inc. Distributed by King Features Syndicate
