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May 24, 2005

More on the Deal

Having had more time to think through and read over the deal, I'm still pretty happy with it. But I do want to go over a few things in detail. The really crucial portion is the "future" section, where each senator is given personal discretion to decide what constitutes "extraordinary circumstances". One read of that makes filibusters easy, it's up to the Democrat. Another read means Republicans can attack it, it's up to them. But here's the thing: there's no trap door in it, no clause that says a filibuster under "ordinary circumstances" will trigger another vote. More important, that clause is followed by:

"In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules change in the 109th Congress, which we understand to be any amendment or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or rule XXII."

On the face of it, that's the battle right there, it looks like the filibuster is preserved. As Matt points out, however, there are certainly tortured readings that could allow Republicans to slip out of it. Indeed, Mike DeWine has already taken such a read:

[I]f an individual senator believes in the future that a filibuster is taking place under something that’s not extraordinary circumstances, we of course reserve the right to do what we could have done tomorrow which is to cast a yes vote for the constitutional option.

If this agreement is binding in any way, no, he couldn't. But in reality, he retains a free hand. Even so, this is still a win. I'm quite convinced we would've lost the fallout. I know that's heresy and Super Reid would've used his extrahuman intelligence and laser eyes to lead us to victory, but the basic argument that we'd shut down the Senate because the Republicans were forcing us to vote on six appellate judges...I just can't see that pulling through on the nightly news.

SInce the fight has, for the foreseeable future, been forestalled, the next real eruption is likely to be over the Supreme Court. And that's exactly what the right didn't want. Anyone bad enough for us to filibuster is going to have one hell of a nasty record. And since the public is fully aware that Supreme Court appointments are long-term and highly powerful, a filibuster to get the guy's record out would, unlike the assault on appellate judges, make perfect sense. Bush didn't want that, so he had the Senate provoke a showdown now. But as now has become later, we've won this round because Bush knows we can make an enormous media deal of his Supreme Court nominee's opinions. And hey, no one wants a Bork on their record.

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Comments

You've pretty much crystalized the most rose-colored way I can look at what happened. But when I take off those glasses, I'm more disappointed in the result than you seem to be.

I think I still fall on the side of this being a battle worth fighting all the way, even if it meant the possibility of losing. Even more so now since our "win" is so tenuous/nebulous. But what the hell do I know?

Posted by: Mr Furious | May 24, 2005 11:46:41 AM

On the whole, I still think that the Democrats got the better of the deal, but if anyone can claim a win, it's the moderates of both parties. The Republicans in general and, Frist in particular, has been running roughshod over their moderates. This compromise is where the moderates strike back and remind Frist that without them, the Republicans will get nothing done.

DeWine's statement was simply a warning to the Democrats not to overreach.

Posted by: pansauce | May 24, 2005 11:49:47 AM

Peace in Our Time

Posted by: bob mcmanus | May 24, 2005 11:51:12 AM

SInce the fight has, for the foreseeable future, been forestalled, the next real eruption is likely to be over the Supreme Court. And that's exactly what the right didn't want. Anyone bad enough for us to filibuster is going to have one hell of a nasty record.

I don't know, dude. Janice Rogers Brown has one fucked up record. Generally speaking, we've been pretty sucky at convincing people on the merits of nominees. Mostly, I suspect, because no one knows what the interstate commerce clause is, or has any clue what it means to call 1937 "the year of our socialist revolution," as she did. There's nothing sexy about this kind of stuff, and I think it'll be hard for us to really get people worked up about a bad SCOTUS nominee. Unless, of course, there's more stuff about pubic hairs on coke cans.

And that's the thing. I'm sure they've learned their lesson since Clarence Thomas. I'm sure they'll find some squeaky clean wingnut (with a photogenic family) who's like 22 and would sit on the court for several centuries.

Not that I think we can't LEARN how to do a better job of convincing people that conservative judges are evil, it's just that so far we haven't done a great job of it, and I don't see any reason to be optimistic.

And let's say there IS a big nasty fight, and eventually a SCOTUS filibuster is successful. Isn't that precisely what some on the right want? Won't that just keep the Dobstonites energized and pissed off? Won't that be bad for the mid-terms? It would sure put Ben Nelson in a tougher race than he's currently anticipating.

Posted by: Michael | May 24, 2005 1:43:42 PM

But see that's the thing. Brown sucks, but no one pays attention to appellate court nominees. If Brown was going up to the Supreme Court, she'd be headline news. And that's what we want. We need to preserve this option in order to force Brown or whoever it is to become headline news. Appellate judges just don't arouse passions and the media refuses to treat them as important. Elevating someone to the SCOTUS, however, creates a feeding frenzy, and the filibuster can prolong one.

Posted by: Ezra | May 24, 2005 1:52:14 PM

A filibuster right that cannot be used is a filibuster right ceded, IMO. When one takes a moderate, rational approach and an extremist, Machiavelliam approach -- splitting the difference is neither Centrist nor "compromise."

Posted by: Daxiong | May 24, 2005 2:21:12 PM

Plus: What exactly have the Far Right Extremists done to indicate they are trustworthy? What indication do we have that, after ceding them part of what they want, they won't continue to press for the entire enchilada, in the near future? They have showed us time and again that they are corrupt and without honour or principle. Making a deal with the Devil is always a Bad Thing (tm).

Posted by: Daxiong | May 24, 2005 2:23:57 PM

Ezra,

I hope you're right.

If Brown was going up to the Supreme Court, she'd be headline news. And that's what we want. We need to preserve this option in order to force Brown or whoever it is to become headline news.

But the wingnuts are smart too. They know the history of the last three contentous SCOTUS nominees: Bork, Ginsburg, Thomas. And I can't imagine they won't choose a nominee who will avoid the pitfalls of all three of those.

To take our current example, if Bush nominated Brown, it's pretty predictable what would happen:
1) Why do Dems hate black people? By the way, Robert Byrd voted against the civil rights act.
2)That stuff about the socialist revolution? She was just saying that to be provocative.

And unless St. Reid does something that I'm really not anticipating, the race card will work, especially if the left doesn't have anything sexy like pubes and coke cans or pot smoking. We can all imagine similar scenarios for different nominees.

So, you might be right that the compromise has made Bush's job more difficult; and that the threat of a filibuster increases the liklihood of confirmation battle. But if the filibuster can only be threatened but not used, your point will be moot if they can confirm a wingnut either by invoking the nucular option or threatening to invoke it again.

The compromise is easy to dismantle. If DeWine, Graham et al want to vote for the nucular option, in the end, they will, as you imply in the post -- and we'll get a lunatic on the Supreme Court anyway. But because it LOOKS like an actual compromise, I'm afraid it creates a false sense of security for us.

So the follow-up question is this: if we CAN make a huge media deal, and STILL see a Bush SCOTUS justice confirmed (which seems likely to me), will that have been worth it? Will the presumed political damage inflicted on the admin make up for the SCOTUS justice getting confirmed?

Because of the other two options, one is decidedly better: preserving the filibuster intact. The other, having the filibuster ended, would have been worse, obviously, but who's to say that wouldn't have been a big media deal in itself? "We can't filibuster, but we can sure complain a lot. Tyrannical right-wingers, blah blah blah."

Posted by: Michael | May 24, 2005 3:18:08 PM

Still sucks...but, you know, spilt milk and all.

More of a question, though, doesn't it look like the 'DEAL' had a little more to do with the 2008 GOP primaries? McCain did put Fristy in a nasty place.

Posted by: kMC | May 24, 2005 4:04:44 PM

The really crucial thing to me is the past that people are going to be living in when they are subjected to some of the Nineteenth century political wisdom of lifetime appointees Brown and Owen.

More on this at Bodies Everywhere Bleeding, the latest add to Armageddon on the Potomac

Posted by: The Heretik | May 24, 2005 4:06:23 PM

"Nineteenth century political wisdom of lifetime appointees Brown and Owen."

Well, we don't quite know about Brown yet. Bit her importance is still being undestimated.

Someone mentioned child labor laws. The circuit courts are gatekeepers. SCOTUS can't decide an issue without a case. The New Deal first needs to be overturned at the DC Circuit, so that Scalia & Thomas have a chance to affirm. Brown at DC will be critical in the cases, and kinds of cases, that get a shot at cert.

Posted by: bob mcmanus | May 24, 2005 4:18:36 PM

If Brown was going up to the Supreme Court, she'd be headline news. And that's what we want. We need to preserve this option in order to force Brown or whoever it is to become headline news.

I think you've been had. How can anyone say the nomination of Brown or anyone like her would be "extraordinary circumstances" after she is confirmed by this Senate? The argument will go "Well you said she was OK then..so what has changed?"
Then the agreement will be declared null and void because the Democrats breached it and the constitutional (Byrd) option will, again, be on the table.

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