Over the past week or so the mainstream media have been running at least a story a day covering the efforts of a group of "moderate" Democratic and Republican Senators who are said to be trying to work out a "compromise" to avoid such a showdown.

The division of the Senate is so equal that a small group of Senators can unilaterally impose their will on filibuster matters in several ways. Acting together,

• If six Democrats vote with the Republicans, the majority would have the 60 votes needed to cut off a filibuster, thereby making the push to end the filibuster rule irrelevant.
• If six Republicans vote with the Democrats, there will not be the 50 votes needed to alter the filibuster rule, making a change to the rule impossible.

In order for these "moderates" to agree to do this, they must work out a "compromise." Unfortunately, every version of a "compromise" that I've seen doesn't look like much of a compromise.

One of the reasons for this is that the Democrats have already compromised to the point that any further compromise is a compromise in name only. The truth is that it would be a rout.

Here's last Friday's version of the "compromise," as told by Laurie Kellman of the AP,

A draft memorandum of understanding from Friday's negotiations said Democrats and Republicans signing the compromise would take several steps designed to avert a showdown "based upon mutual trust and confidence."

For Democrats, that meant agreeing to clear the way for final votes on six contested judges, including Owen. Two other nominees would not be guaranteed final votes.

In addition, the draft said future nominees to the appeals court and Supreme Court "should only be filibustered under extraordinary circumstances." Each senator would be permitted to decide when that condition had been met.

In return, those agreeing to the compromise would "commit to oppose the rules changes" sought by Frist. For Republicans that would mean breaking ranks on the issue "to reduce the rancor that unfortunately accompanies the advice and consent process in today's Senate," the draft said.

Let's see. We started with 8 execrable judicial nominees, who were the casus belli in this filibuster battle, and the Democrats are now supposed to let the Republicans put 6 of them through and maybe—just maybe—hold back on two of them. Any future nominees could only be filibustered in "extraordinary circumstances."

Well, excuse me, but the Democrats found themselves in "extraordinary circumstances" some time ago. To say or admit otherwise is only to shift the terminology (the frame) to the benefit of the Right. Suddenly the extraordinary would become ordinary.

And why would the Democrats allow that? To save the filibuster?

I start from a different premise: It is not the filibuster that needs saving but the federal judiciary. To the extent that the filibuster can be used to do that, fine! But Democrats should not take their eye off the ball—and the filibuster is not the ball.

Tactically, the Democrats should be speaking about the kind of judiciary that the American people expect, that freedom and truth and justice require. And they should not use the words "judge" or "judiciary" without mentioning Terri Schiavo.

Over a month ago I wrote that I thought the threat to end the filibuster had been allayed by the Republicans missteps in the Terri Schiavo affair. I believed it then and believe it now. But I suggested in a later post—just before "Justice Sunday"—that the Republicans' best tactic would be to delay the matter. And that is what they have done. Schiavo has now dropped from the news and the American public no longer has before it such a compelling reminder of why the judiciary fight matters.

It is a sad fact that the Democrats have few orators who can match the brilliance of George Galloway, but such as they have, it is time for them to get on their soap boxes and make the case to the public about why federal judges matter to them—and the Schiavo affair is near enough in time to help bring the point home.

After all, it was judges—both state and federal—who would not allow the Florida legislature or the Congress to ride roughshod over the rights of Terri Schiavo and her husband. The public should be reminded that if the courts had been populated by judges who subscribed to the theory that they should defer to the legislature in all matters great and small, Terri Schiavo would still be on a feeding tube.

If Bill Frist hopes to win over the Christian Right by bringing this matter to a vote, I can only hope that those "moderate" Democrats will not prevent him. It is not at all clear that Frist will win the vote anyway.

But even if it were certain that he would win, the Democrats must not cave in. They would gain nothing more than the preservation of a Senate rule, and the Right would gain a great deal indeed. Let them do it the hard way—by voting.

Follow-up post
Memorandum of Understanding on Judicial Nominations (5/23/05)

Previous posts
Phil E. Buster recuperates after Terri Schiavo's death (4/13/05)
Will the Republicans "go nuclear"? (updated) (4/22/05)
The Second American Revolution goes nuclear (5/16/05)