Virtuoso role reversals mark filibuster struggle

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First thoughts: Livin' here in Allentown

Filibuster's history
The filibuster has been used to kill legislation to extend voting rights to black Americans and to protect them against lynching. For decades, Southern senators defended the filibuster as necessary to protect the culture of segregation.

Liberals were incensed.

“It is a travesty to wrap the mantle of ‘free speech’ around the filibuster. That is exactly what the filibuster is not,” declared a 1956 New York Times editorial previewing the following year's battle over a civil rights bill.

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Liberals spent much of the 1950s and 1960s trying to abolish or curtail the filibuster, seeing it as a procedural bastion of racism. It is easy to see how Frist might invoke this history by trying to bring an African-American judicial nominee, Janice Rogers Brown, to a vote on the Senate floor.

Democrats regard the 60-vote requirement to end debate as the new threshold for judges, even though the Constitution has no such super-majority requirement.

Sen. Barbara Boxer, D-Calif., explained at a rally by the group Moveon.org a few weeks ago: “We think you ought to get nine votes over the 51 required. That isn’t too much to ask for such a super-important position. There ought to be a super-vote, don’t you think so?”

One solution: a swap
History suggests one way out of the stand-off: Bush would accept a few Democratic-recommended nominees; in return the Democrats would agree to not filibuster any Bush nominees.

Trade-offs were not unknown in the past.

In 1961, President Kennedy agreed to nominate segregationist judges such as William Harold Cox to the bench because in order to enact his legislative agenda, he needed the cooperation of the Southerners who controlled congressional committees.

"For 986,000 Negro Mississippians, Judge Cox will be another strand in their barbed wire fence," lamented Roy Wilkins, head of the National Association for the Advancement of Colored People, in a protest to Kennedy when the Cox nomination was announced.

In 1986, Democrats thought Sen. Slade Gorton, R-Wash. was ready to join them in defeating President Reagan’s conservative appeals court nominee Daniel Manion.

Gorton decided to vote for Manion after White House officials called him in the middle of the vote on the nomination to tell him that Reagan had agreed to proceed with a district court nominee Gorton wanted.

Gorton’s man: William Dwyer, a Democratic lawyer who’d worked with Gorton when he was state attorney general.

The Senate confirmed both Dwyer and Manion. Dwyer died in 2002; Manion is still serving.

But one could argue that the Manion-Dwyer trade was a unique transaction and not suited to averting the large-scale ideological struggle that Democrats and Bush are now fighting.

There is no sign that such a trade-off is now in the works. "It would be like negotiating with terrorists," said one Senate Republican aide, who argued that Democrats would raise their demands higher and higher if Bush tried to placate them with a few judicial nominees.

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