The politics of blinking first
    by Steven Lubet as seen in the Chicago Tribune

The battle over President Bush's judicial appointments has all of the trappings of a high-stakes poker game, with each side continuing to raise the ante, while daring the other to go "all in." Senate Democrats seem determined to continue their filibusters of the president's most extreme nominees, while Republicans are increasingly threatening to employ the so-called "nuclear option," simply abolishing the 200-year-old right to filibuster, although only with regard to judicial confirmations. When it comes to policy, the Democrats have the better case. Senate Republicans, after all, were perfectly happy to endlessly stall President Bill Clinton's judicial appointments--frequently on the say-so of a single Republican senator--so it is hard to sympathize with their newfound enthusiasm for bringing every nominee to the Senate floor.

When it comes to poker, however, the Republicans have thoroughly outmaneuvered their opponents. You would expect the Bush administration to be good at Texas Hold 'Em, but it is surprising how bad the Democrats, led by Sen. Harry Reid of Nevada, have played their hand.

First, the Democrats' bluff has been too transparent. Faced with the prospect of the nuclear option, they have responded with threats of their own. "Abolish the filibuster," they warned the Republicans, "and we will respond by exploiting arcane procedural rules that will bring the Senate grinding to a halt." You can imagine what would happen in the Senate if Democrats refused "unanimous consent" on routine measures, or demanded roll-call votes on every amendment and bill. Sure, they could throw the place into chaos, but they obviously don't mean it, as the Republicans surely understand.

The Democrats' threat is hollow because they have no intention of fulfilling it until after the Republicans have changed the filibuster rules. But at that point it will be too late. Once the filibuster is gone it's gone, and snarling the Senate won't bring it back. The Republicans could go ahead and confirm even the most outrageous judge or justice, and all the Democrats could do, at that point, is fume. Tying up the Senate might feel good for awhile, but revenge quickly grows tiresome and things would sooner or later (probably sooner) return to normal.

As any card player will confirm, a bluff only works when your current hand seems truly powerful. Threatening to "get even," however, is a sign of weakness rather than strength. If the Democrats really want to play the "snarl" card, they would not wait to tangle things up. In fact, they would start tomorrow. Blocking a few routine votes would inflict some real pain on the Republicans and, most important, there would be no end in sight. That would be a strong play, not a bluff, and it could set the stage for serious negotiation.

Then we have the problem of "pot odds," which defines the relationship between risk and gain. In the simplest terms, a card player is typically more likely to call a raise when the pot is big, because the potential return is better. The higher the payoff, in other words, the more you should be willing to bet.

Unfortunately, the Democrats have raised the confirmation stakes--with the unprecedented filibuster of federal appellate court nominees--to the point where the pot odds actually favor the Republicans' nuclear option. The more judges who go into the pot, so to speak, the bigger the reward if the filibuster fails.

But take heart. This insight actually suggests a resolution to the current impasse. It is within the Democrats' power to lower the stakes by giving up the filibuster of appellate court nominees (currently Priscilla Owen of Texas and Janice Rogers Brown of California, but as many as eight more now in the pipeline). That would dramatically change the pot odds for Republican senators--especially the handful of moderates who would prefer to avoid a showdown--by reducing the eventual payoff. Yes, the result would be confirmation of some woeful judges, but they would be confirmed in any event if the Republicans carry through with their plans. Meanwhile, the filibuster could be retained for future U.S. Supreme Court nominees, the biggest prize of all. Of course, the Democrats could keep all their cards on the table, taking a chance on attracting enough wary Republicans (it would require at least six) to keep the filibuster intact. But that would be gambling, wagering everything on a lucky draw. As card players say: Depend on a rabbit's foot if you will, but remember, it did not work very well for the rabbit.

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