Whether Democrats take control of the Senate (which we can guardedly say seems probable) or share power (with Cheney as the Republican tiebreaker), the nuclear option is off the table. Even if 50 Republicans are in the Senate, they won't have the political will to threaten an end to the judicial filibuster, both because threats of extremism aren't playing well with voters and because the nuclear option only made sense in the context of a permanent Republican majority. Republicans don't need the judicial filibuster during the next two years, but they'll want to have it intact if a Democrat takes the presidency in 2008. The dream of a permanent Republican government (a nightmare for the rest of the country) is gone, and with it the nuclear option.

If the Senate has 50 Democrats (grudgingly counting Lieberman as a de facto Dem voter, an assumption that remains to be tested), they can use the filibuster to save us from the worst judicial appointments during the next two years. If Democrats control the Senate, they can block judicial nominees who would move the federal judiciary even further to the right. (Republicans did this effectively during the Clinton years.) The president will have to learn that "advise and consent" doesn't mean "rubber stamp"; if he can't heed that lesson, his nominees should be consigned to oblivion. Two years from now, a better president is likely to give the Senate better choices. The country can wait, if that's what it takes to restore balance to the judiciary.