Is it time for the "constitutional option"?

According to the Washington Times, Bill Frist is ready to implement the constitutional option with Priscilla Owens as the candidate.

Justice Owen, first nominated to the 5th U.S. Circuit Court of Appeals four years ago yesterday, has often been seen as the most likely nominee to be pushed though. And when Mr. Frist, Tennessee Republican, made his final offer to Democrats last month to avoid a showdown, he mentioned only one nominee: Justice Owen.
The Republican sources, both on and off Capitol Hill, say the choice of Justice Owen for the precedent-setting vote is based in part on the political calculation that she is a sure winner and, as one source said, "a great face" for this issue.
She has impeccable academic credentials, received the highest rating from the American Bar Association and is supported by both Republicans and Democrats who know her.

It's about time.

There's been a lot of chatter the past couple of days about a potential deal, being brokered by Trent Lott and Ben Nelson, that would allow votes on some of the filibustered appeals court justices. As I noted a couple of weeks ago when David Brooks was proposing the same kind of deal, it's a loser. The fact is, as soon as the Republicans concede that any of the judges are being filibustered appropriately, the Democrats win and the Republicans lose. These are not extremists. And any deal that the Republicans make which doesn't allow for up-or-down votes on one of them smears that person by giving the Democratic attacks a cloak of credibility.


Also in the Washington Times this morning, Tod Lindberg has a piece - Stop The Filibustering - in which he makes a point that I've been meaning to get around to, and haven't seen anyone else make yet.

As for the consequences of a future reversal of GOP fortune in the Senate, given the current frame of mind of Senate Democrats, Republicans should expect to see a Senate Democratic majority shove everything down the throats of the minority it can. If Republicans don't now end the filibustering of judges, and minority Republicans one day start filibustering judges nominated by a Democratic president, the Democratic Senate majority will end it then.

I've been snickering for weeks at the idea that the Republicans shouldn't change the filibuster rules because they'll want it when they're the minority party again. The fact is that it was inconceivable that a qualified judges should be filibustered in the Senate, but the Democrats have done it. There is one way to stop that, and one way only - change the rules on filibusters. And that's obvious. If the rules aren't changed, the filibusters will continue. The New York Times and the Washington Post don't like the Bush nominees, so they're big supporters of the filibusters. But let's look down the road and try to imagine a world in which President Hillary Clinton has majority Democratic support in the Senate for a couple of liberal pro-Roe judges to the DC Court of Appeals, and 42 Republicans are preventing a vote. Is it even remotely conceivable that a) the Democratic majority would not change the rules and b) the mainstream media wouldn't support them whole-heartedly?

Please. Of course not. So this argument that the Republicans should preserve the filibuster because they'll want it some day is nonsense. The filibuster has now been (inappropriately) used, and the topic of changing the rule has become public conversation. Pandora's box has been opened, the toothpaste is out of the tube. As Durrenmatt said, "what was once thought can never be unthought." The possibility of the rule change has been broached - there's no chance that that change doesn't happen. If it doesn't happen now, it will happen the first time that Republicans do what the Democrats are doing now. It is nonsensical to pretend that the "protection of minority rights" that the filibuster represents will still be sacrosanct when the Republicans are the minority.