There are three possible outcomes to the current fight:
If crafted carefully, a compromise would accomplish the following:
- Some of the current crop of judges are blocked
- Judicial filibuster is retained for Bush's second term (including SCOTUS nominations)
- Theocratic right outraged at GOP
- Swing voters somewhat less worried by GOP abuse of power
If both sides stand their ground we are likely to see this:
- None of the current crop of judges are blocked
- Judicial filibuster is lost for Bush's second term and beyond
- Theocratic right ecstatic with GOP
- Swing voters somewhat more worried by GOP abuse of power
Finally, if the GOP backs down from the nuclear option all together:
- All of the current crop of judges are blocked
- Judicial filibuster is retained for Bush's second term
- Theocratic right outraged at GOP
- Swing voters somewhat less worried by GOP abuse of power
Think hard for a minute and try to pretend you are a Republican strategist. Which outcome would you prefer going into 2006?
It's hard for me to see any reason why the GOP would choose the last option. There is no significant upside. The public already views them largely as a bully on this issue. Backing down now may remedy this, but it may just make them look like a gutless bully. And even if their compromise did succeed in negating their previous threats in the public mind, there are still other issues which can sustain their overall image as overreaching (Schaivo, DeLay, redistricting). What is more, swing voters (by this I just mean people who actually consider both parties when going to the polls) are much less narrowly focused than the theocratic right. It's possible that the overreaching issue is insignificant to them compared with other complaints with the GOP: high gas prices, a stale economy, an unpopular war, the attack on Social Security.
But as with many things, the GOP can afford to take unpopular stances that are popular with their base, if those stances matter more to the base. The public in general may disapprove but it's just one issue among many. The public in general disapproved of Bush's handling of pretty much every issue except the WOT, and yet they reelected him. Not because they're dumb, but because something matter to them more than others. So I feel the priorities for the GOP in this case are first, installing very conservative judges as a matter of principal, and second, placating their theocrat base. What swing voters think about it is of far less concern to them. Therefore, Democratic success can be measured by the extent to which they thwart these twin goals. Since I don't believe the GOP will back down all together, the compromise position will almost entirely succeed in thwarting these GOP goals.
What about Democratic priorities apart from merely obstructing the Republicans? It seems to me the most important thing for Democrats ought to be preserving the judicial filibuster, especially for future SCOTUS nominees. Some have pointed out that the lower courts may be more important because they hear more cases, but I disagree. The Supreme Court's ultimacy and its tendency to decide the most crucial cases make it more important. And if Rehnquist does indeed create the next vacancy, replacing him with a moderate conservative could have a significant impact of the overall disposition of the court. Furthermore, with the public's apparent predisposition for Republican executives and the Senate's inherent small state (i.e. Republican) advantage, it's very likely that Democrats will have use for the filibuster well beyond Bush's current term. The next most important goal for Democrats ought to be driving a wedge between the theocrats and the rest of the GOP - something that's crucial to near term and long term electoral success.
So the Democratic priorities in this case line up perfectly with thwarting the GOP's priorities. And while this would suggest to many a need for no-holds-barred head-to-head conflict, I would recommend compromise. Not for the sake of compromising, but because it will accomplish most of what we want while denying the GOP most of what they want. Naturally, any compromise would have to be carefully crafted in a very binding and public way. Other disclaimers: I do not consider the plutocratic right in this equation on the assumption that they've already gotten such a bonanza of giveaways from the Bush administration that they will not be strongly affected by the Senate stalling as a result of the nuclear option. Also, I do not consider the possibility of a compromise that does not protect the filibuster, as Democrats would be crazy to accept such (and Reid has said it's off the table).
~END~