For months now the battle over judicial nominations has been one of maneuver rather than engagement. Republicans and their core supporters are trying to remold the courts with conservative and originalist appointments. Democrats and their core supporters are trying to preserve what is left of their last bastion of strength in terms of activist judges who will defend and advance liberal policies. The stakes are incredibly high, and everyone knows it.
If Senate Majority Leader Bill Frist can keep 50 Republicans on board to support the nuclear/Constitutional option and abolish filibustering of judicial nominees, the road will be clear to confirm virtually everyone President Bush nominates. Most pundits now seem to believe that Frist has sufficient votes, and that the showdown is finally at hand.
Difficult negotiations rarely reach the serious stage until a deadline is staring everyone in the face. We can see the evidence in the intense last-minute negotiations which are underway among many Senators. Most Senators would just as soon avoid the issue rather than risk a metaphorical nuclear war. But indefinite avoidance is not possible; judicial nominees eventually must start coming to the Senate floor for a decision.
Then again, maybe indefinite avoidance is possible.
If Frist really does have the votes, and all compromise negotiations fail, the Democrats are left with only two choices: (1) Filibuster a nominee until Frist asks for a ruling from Vice-President Cheney which will abolish all future filibusters, or (2) Don't filibuster any nominees.
It seems to me that option # 2 is the obvious option to take.
Either way, Bush is going to get his nominees confirmed. Democrats can easily go back to their core constituencies and make that case, that they simply didn't have the votes AT THIS TIME to block the nuclear option and prevent the confirmations.
But this at least leaves open the door to future filibusters after the 2006 elections. If Democrats pick up even one seat in the Senate, it may be enough to neuter the nuclear/Constitutional option. Who cares if Bush replaces Rehnquist with another conservative? This gives Democrats some hope of blocking Supreme Court nominations during Bush's final two years in office.
My guess is that six moderate Democratic Senators will get together and announce that they are taking the path of avoidance, and for now they will vote with Republicans to close debate on pending judicial confirmations even if they subsequently vote against the nominees. The nuclear showdown will be avoided. Democrats will lose this battle but live to fight again.
And let's face it, avoiding difficult decisions would truly be in line with the great traditions of the United States Senate.
UPDATE -- 5/19/2005: Democrats Seek Avoidance "Deal"
Byron York at The Corner hears that Democrats "are backing down somewhat on the number of nominees they would insist on killing as part of any agreement." This immediately tells us that Frisk has the votes to prevail. If Democrats thought they could strip off enough Republican votes, they wouldn't be the ones making concessions during negotiations. Especially when Republicans don't seem to be agreeing to any substantial compromises.
If Frist indeed has the votes, then Democrats are reduced to seeking ways to save face, even as they surrender to the current reality. York says that the Democratic moderates will agree not to filibuster nominees except under "extraordinary" circumstances. In exchange, they want Republicans to forego the nuclear/Constitutional option through 2006. Republicans are countering that they'll refrain from going nuclear except under "extraordinary" circumstances.
If the final deal is that no current or future nominees will be filibustered except under "extraordinary" circumstances (which might also trigger the nuclear option) then that is exactly equivalent to what I described above: Democrats won't filibuster for now, in the hope that at some future time (e.g., after the 2006 elections) they'll have a better chance of avoiding nuclear emasculation.
UPDATE #2 -- 5/19/2005: More Corroboration
Mickey Kaus and James Taranto also see the logic in a Democratic back-down. If this meme picks ups steam, it may become a self-fulfilling prophecy: Why should Republicans make any real concessions if the behind-the-scenes chatter suggests that Democrats will ultimately cave? The obvious increasing desperation of Democrats to cut a deal, any deal, just to be able to spin the outcome in a better light, just further weakens their negotiating leverage.