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    THE REAL STAKES IN THE JUDGE WARS

    BY COLLIN LEVEY
    12/17/2004
    by COLLIN LEVEY on 12/17/04.

    December 17, 2004 -- BEFORE a single Supreme Court justice has begun muttering about a nice retirement condo in Florida, a preemptive war is underway in the U.S. Senate. Democrats have been abusing their advise-and-consent role by stonewalling President Bush's judicial nominees. Republicans are mad as heck and not going to take it anymore.

    But why not? If the last election proves anything, it's that Senate Democrats only discredit themselves by relying on parliamentary tricks to win.

    At the center of this fight is the filibuster, which lets a minority prevent action on a bill or nomination by forcing the majority to get 60 votes to do anything.

    By tradition, the filibuster has played a balancing role, making it hard for a Senate majority to run roughshod over an impassioned (typically, regional) minority. But Democrats have cheapened the practice, using it to block judges and win cheers from Hollywood liberals and "progressive" interest groups. Ten times in the last four years, they've denied a vote to appeals-court nominees despite, in some cases, clear bipartisan support to confirm them.

    But the action wasn't without cost. The "Group of Ten" banished nominees gained a sort of political martyrdom, while the chief saboteur — then-Minority Leader Tom Daschle — lost his seat.

    Democrats, in short, may have won a few battles, but they've clearly been losing the war. Yet Senate Majority Leader Bill Frist is acting like a panicked man with his finger on the button, threatening a "nuclear option" against Democratic filibuster tactics.

    "Nuclear option" is Beltway shorthand for invoking the power of Vice President Dick Cheney (as the Senate presiding officer) to declare the filibuster unconstitutional, a ruling that would take only 51 Senate votes to uphold.

    Aspiring filibusterers say that move would ricochet through the Congress's agenda on other issues. Incoming Democratic leader Harry Reid has eloquently promised to "screw things up," while New York's Chuck Schumer specifically threatens blockades on Social Security and tax reform.

    There's a temptation to call the bluff. But it's foolish to try: Who needs a nuclear option when the Democrats are so willing to make their own radioactive puddle and roll around in it?

    The problem isn't the filibuster, after all, but its everyday use as a battering ram. Former GOP veep candidate Jack Kemp observed recently that filibusters have become so prevalent because they no longer cost Congress much — rules now let other business move ahead even while a "filibuster" is on. It is, he says, "obstructionism on the cheap."

    Look at what's really going on here. Democrats have totally lost power to set the nation's agenda in the White House and Congress — but liberal groups still feel entitled to legislate through the courts. Hence their keenness to block conservative nominees and so preserve the power of liberal Carter and Clinton appointees to shape the law.

    That's why liberals care so much. With their agenda rejected by voters, the interest groups depend on activist judges to carry out their agenda on issues like gay marriage, the environment and the "progressive" downgrading of property rights. So the leftist People for the American Way whines that a conservative Bush appointee would be "staggeringly damaging" and should be prevented at any cost.

    The filibuster's magic when applied to judicial nominees is that, through extended blathering, it raises the standard for confirmation to 60 votes, from 51. The GOP now has just 55 Senate seats, but several Democrats are up for reelection in 2006. If they spend the next two years in another riot of heel-dragging, they may just hand Republicans the 60 votes needed for cloture two years from now.

    The last election showed that voters have remarkable aptitude to sift out the important lessons at the ballot box. They may not have followed every Beltway skirmish over judges, but they certainly understood the idea of Democratic obstructionism against a popular president.

    The filibuster has traditionally been a useful and legitimate tool of the minority. Republicans are right to see Democrats' abuse of it as an unearned power grab, but they should realize that voters see it too — as one more reason the Democratic Party is not yet fit to govern again.

    E-mail: clevey@nypost.com