During his first four years as President, George W. Bush nominated fifty-two men and women for seats on the Circuit Courts of Appeals. The Senate confirmed thirty-five of them. During the previous Presidential term, Bill Clinton’s second, fifty-one candidates for those same appellate courts were nominated. Thirty-five were confirmed. Call it a tie.

The details differed, but the differences tended to offset one another. On the one hand, Clinton, both by inclination and (the Senate being in Republican hands) by necessity, almost always nominated moderates—moderate liberals, moderate conservatives, and just plain moderates—while Bush has almost always nominated conservatives, very few of them moderate and some of them so out there in the distance that their left-of-center equivalents would look more like William Kunstler than like Floyd Abrams. On the other hand, Senate Democrats, a minority for all but seventeen months of Bush’s term, have had to use larger-calibre tactics. Republicans and Democrats alike have taken advantage of the Precambrian rules of their chamber to dispose of nominees who, if put to a vote in the full Senate, would have been confirmed. But while Republicans simply arranged for unwanted nominees to disappear forever into the no-exit in-box of the Judiciary Committee, Democrats have been obliged to flourish the ultimate weapon: the filibuster. Call this a tie, too, though with the ideological edge going to Bush.

Now it turns out that the filibuster is not the ultimate weapon after all. It’s merely the penultimate one. As Jeffrey Toobin reported in these pages last week (“Blowing Up the Senate”), the real ultimate weapon is—shades of Joe McCarthy!—the point of order. Here’s how it would work. Normally, under the Senate’s famous Rule XXII, it takes sixty senators, three-fifths of the full membership, to cut off debate and proceed to a vote. However, during a debate on a judicial nominee, a Republican senator would ask the Presiding Officer to rule that further debate is out of order. The Presiding Officer—Vice-President Cheney—would so rule. The ruling would be challenged, of course. But because such a challenge can be tabled by the vote of a simple majority, and because there are fifty-five Republican senators, the ruling would be upheld. And, boom, that would be that—a piece of procedural ordnance so devastating in its effects and its aftermath that it has been nicknamed “the nuclear option.”

The point-of-order strategem would nuke not only the particular filibuster against which it was deployed but all future filibusters against judicial nominees. It would also put an end to any hope of preventing Bush from filling Supreme Court vacancies with clones of his proclaimed judicial ideal, Antonin Scalia, whose activities last week included (a) angrily denouncing his brother and sister Justices for removing the United States from the short list of countries (the others include Iran and China) in which the execution of minors is legally sanctioned, and (b) calling it a “fact” that “government derives its authority from God”—as opposed to, say, the consent of the governed.

The filibuster has been around in one form or another since 1806, when the Senate absent-mindedly neglected to readopt a rule allowing a simple majority to move the previous question. It has been a favored tactic of conservatives of a particularly hard-shelled type, who have used it in the service, successively, of preserving slavery, perpetuating white supremacy, and frustrating what Lady Bracknell disapprovingly called “social legislation.” By the same token, liberals, historically, have passionately called for its abolition. Lately, the roles have reversed. Now it’s conservatives who indignantly denounce the filibuster as undemocratic. And, oddly, they’re right—sort of.

The filibuster allows a minority within a legislative body to thwart the will of a majority. But that is hardly the worst of the Senate’s democratic imperfections, most of which spring from the arithmetical disparity among state populations. Fifty-one senators—a majority—can represent states with as little as seventeen per cent of the American people. Sixty senators—enough to stop a filibuster—can represent as little as twenty-four per cent. That’s theory. What about reality? Well, if each of every state’s two senators is taken to represent half that state’s population, then the Senate’s fifty-five Republicans represent 131 million people, while its forty-four Democrats represent 161 million. Looked at another way, the present Senate is the product of three elections, those of 2000, 2002, and 2004. In those elections, the total vote for Democratic senatorial candidates, winning and losing, was 99.7 million; for Republicans it was 97.3 million. The forty-four-person Senate Democratic minority, therefore, represents a two-million-plus popular majority—a circumstance that, unless acres trump people, is at variance with common-sense notions of democracy. So Democrats, as democrats, need not feel too terribly guilty about engaging in a spot of filibustering from time to time.

One problem for the Republicans is that they like the idea of filibustering legislation (the filibuster has been very, very good to them over the years); they just don’t like, for the moment, the idea of filibustering judicial nominees. So they’ve tried to argue that there is something uniquely awful about the latter. “Filibusters are designed so that the minority can bring about compromise on legislation,” Senator Charles Grassley, an Iowa Republican, told Toobin. “But you can’t compromise a Presidential nomination. It’s yes or no. So filibusters on nominations are an abuse of our function under the Constitution to advise and consent.” Actually, you can compromise a Presidential nomination, by submitting another one. (Robert Bork too right-wing? Fine, appoint Anthony Kennedy.) More important, though, a filibuster actually has more, not less, moral legitimacy in the case of a judicial appointment. A piece of legislation can be repealed or amended after the next election. A judge is there for life.

The Democrats have vowed that, if the Republicans opt for the nuclear option, they will bring the Senate to a halt. No more unanimous consent to dispense with the reading aloud of bills. Round-the-clock quorum calls. Extended debate on confirmation of assistant secretaries. They will be perfectly justified in doing this. But they ought to stay off their high horse about the sacred wonderfulness of the filibuster per se. Over the decades, filibusters have done far more harm than good. In “Mr. Smith Goes to Washington,” Jimmy Stewart used one to save his Boy Rangers camp. In real life, the record is not so pretty. Absent Senate filibusters, the anti-lynching bills of 1922, 1935, and 1938 would have become law, bringing federal force to bear against racist violence and possibly allowing the civil-rights movement to achieve its victories decades earlier; direct election of the President would have replaced the electoral college in time for the 1972 election; and nearly all Americans would now be covered by a program of national health insurance. So, Democrats, please: If the Republicans go nuclear and ban filibusters for judicial nominations, by all means raise holy hell. But don’t elevate the filibuster into a moral principle, and when you get back into power—and, hard as it may be to believe at the moment, that day will come—get rid of it for everything else, too.