As the Senate votes in Bush’s long-filibustered nominees, the nuclear option compromise is looking more rancid than reasonable. The seven Democrats who helped broker the compromise pledged not to filibuster except in the most extraordinary circumstances. But given the track record of Priscilla Owens, Janice Rogers Brown, and William Pryor, I wonder how extreme a candidate has to be before these Democrats and their seven Republican colleagues would reject them.

Would a prospective nominee have to be caught wearing white Klan robes to Sunday church? Having public sex with a live animal? Receiving videotaped bribes from Don Corleone? I suppose these actions might meet the “extraordinary circumstances” standard, but running roughshod over legal precedents to favor the wealthy and powerful clearly doesn’t.

Because the participating Democrats agreed not to filibuster Owens, Brown, and Pryor, the public barely heard the stories of why their nominations crossed an unacceptable line. We heard mostly the inside baseball of legal abstractions. But their history is pretty drastic:

• Brown considers protections like the minimum wage and food safety standards as unconstitutional intrusions on commerce, and attacked the New Deal as “the triumph of our own socialist revolution.” She’ll now be able to protect us from legal protection from her seat on the second highest court in the land. Yet not a single Republican voted against her.
• In a dissent from her largely Republican colleagues on the Texas Supreme Court, Priscilla Owens supported a law that allowed certain private landowners to exempt themselves from “any environmental regulations” inconsistent with their own land use and water quality plans. She also argued for such draconian limits on the ability of minors seeking abortions to get permission from a judge that her then-colleague Alberto Gonzales said accepting her logic “would be an unconscionable act of judicial activism.”
• Pryor defended Alabama’s practice of handcuffing prisoners to a hitching post under the hot sun if they refused to work on chain gangs, and urged the Supreme Court to hold that a disabled state employee who has been discriminated against in the workplace cannot sue the state for damages under the Americans with Disabilities Act.

In return for establishing these judges as a new acceptable standard, the seven compromising Democrats kept the theoretical right to filibuster. But it’s guaranteed only if they don’t exercise it. They saved an abstract principle at the price of agreeing to cave in practically every imaginable circumstance.

The Republican participants come off even worse. True, they bucked Bill Frist and Tom DeLay to commit the unconscionable sin of talking across the aisle, and for this they should be honored. But if they really believed in democracy, moderation, and the value of political consensus, they wouldn’t have demanded that the Democrats allow the appointment of judges like Owens, Brown, and Pryor, for positions they’ll keep for life. They wouldn’t have demanded that the filibuster be used only in circumstances so extreme that they’re likely to almost never happen. They would have stood up for some kind of genuine middle ground, and not just capitulation to the raw rule of power.

But Owens, Brown, and Pryor are now the new acceptable standard of judges confirmed for lifetime appointments. Their acceptance invites the Republican right to push the envelope still further. For all the talk of moderation and compromise, and for all the protestations of right wing spokesmen like James Dobson and Paul Weyrich, a bit more of this country’s future just got handed over to those who would leave no recourse for people without power. The so-called moderate compromisers who made this possible are smelling more craven than courageous right now.

Paul Loeb is the author of The Impossible Will Take a Little While: A Citizen’s Guide to Hope in a Time of Fear, named the #3 political book of fall 2004 by the History Channel and the American Book Association. See www.theimpossible.org .

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