E-Mail This Article to a Friend A wan win The filibuster compromise is no cause for celebration — but it’s the best deal progressives could get

THE COMPROMISE to preserve the judicial filibuster, announced by 14 senators from both major parties this past Monday, will allow three extreme right-wingers to become federal appellate judges. There’s also no guarantee that the compromise will hold. If the stakes are sufficiently high — as they surely will be the next time there’s a vacancy on the Supreme Court — then Republicans could revert to threatening Democrats with the "nuclear option," as they have called their plan to cut off debate and force floor votes on all nominees for federal judgeships.

But despite these obvious shortcomings, the compromise is good news for progressives — or as good as the news is likely to get in these dismal times. Two other extreme nominees will not be voted on. The filibuster — a crucial tool for protecting the rights of the minority — is still alive, if not particularly well. Most important, seven Republican senators, including several who are generally counted with the conservatives rather than with the moderates, have stood up to the right wing of their own party. This is a heartening development, and offers hope that President Bush and Senate majority leader Bill Frist may finally have overreached.

Indeed, the deal announced on Monday is just the latest setback for the Republican right. In retrospect, it may turn out that the right-wingers’ shameful intervention in the Terri Schiavo case was their undoing. Public-opinion surveys showed that not only did a majority of respondents oppose federal intervention in that most private and emotional of circumstances, but that even evangelical Christians did not support forcing the husband of the all-but-brain-dead woman to keep her body functioning. Republicans such as Bush and his brother, Florida governor Jeb Bush, as well as Frist and House majority leader Tom DeLay, were exposed as little more than tools of right-wing special-interest groups. In another sign that change is in the air, the Republican-controlled House defied President Bush this past Tuesday by voting to expand federal funding of embryonic-stem-cell research. The measure likely won’t survive Bush’s threatened veto, but it’s becoming increasingly clear that the presidential aura is fading.

Still, unless Democrats can find a way to start winning elections, Monday’s compromise may prove to be little more than a holding action. The key Republicans involved in the deal, Virginia’s John Warner and Arizona’s John McCain, are aging. The leader on the Democratic side, West Virginia’s Robert Byrd, is 87. Such leaders hark back to a time when the Senate was a more genteel institution, governed by its own internal principles rather than by the raging partisan wars beyond it. The Constitution intended such moderation, protecting senators by granting them six-year terms, and — until 1913 — specifying that they be appointed by state legislatures rather than elected by the voters.

Yet, in recent years, the Senate has come to be influenced by the more ideological, more volatile House; and many current senators are themselves former House members. Some senators are moderates by virtue of geography. Republicans Olympia Snowe and Susan Collins, of Maine, come from a state with a tradition of moderate Republicanism. Republican Lincoln Chafee, of Rhode Island, represents one of the bluest states in the country. Democrat Mary Landrieu’s home state of Louisiana has become increasingly conservative. Over time, though, this band of moderates has dwindled, and is likely to shrink further during the next several years. In such an environment, an image conjured up in Tuesday’s New York Times, of Senators Byrd and Warner discussing what Alexander Hamilton wrote in the Federalist Papers about the Constitution’s "advice and consent" clause, seems like an artifact from a bygone era.

This week’s victory is incomplete, and could well prove temporary, which is why progressives must remain vigilant. The Supreme Court announced on Monday that it will take up the divisive issue of abortion rights for the first time in five years. Though ostensibly about a New Hampshire parental-notification law that was struck down by a federal appeals court, the case goes to the heart of whether lawmakers may prohibit abortions without regard for the health of the pregnant woman. From the time of the Roe v. Wade ruling, in 1973, the courts have occasionally narrowed but never overturned women’s right to choose. But if Democrats find themselves powerless to stop Bush’s worst judicial nominees, reproductive freedom could become part of the past.

After Monday’s compromise was announced, Nan Aron, president of the liberal Alliance for Justice, said that activists on her side were "angry" and "very disappointed" with the Democrats for not doing everything they could to stop Janice Rogers Brown, William Pryor, and Priscilla Owen, the three ultraconservative Republicans who will now join the federal bench. Aron’s anger was misdirected. The fault lies not with the Democrats, but with President Bush and his conservative allies in the Senate. The Democrats, outnumbered by a margin of 55 to 44 and threatened with irrelevance, did well to cut a deal that preserves at least some of their prerogatives.

But unless the voters do their part — by electing senators, House members, and, ultimately, a president who reflect mainstream American values — then the Democrats will continue to operate at a considerable disadvantage. And progressive values — not to mention common sense — will remain under assault.

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