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May 23, 2005

Done Deal

Crisis averted. Seven Republicans and Seven Democrats brokered a deal (short PDF) averting the nuclear option. Three of the president's nominees will go to the floor (Brown, Owens, Pryor), two won't (Myers, Saad). The filibuster is not blocked in future cases and all parties pledge to vote against attempts to end it for the duration of the 109th Congress. Jeff Dubner is unhappy, but I don't really see why. The deal, crucially, says

"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."

With these seven promising to vote against any more attempts to end the filibuster for the duration of this Congress, it seems like we got what we wanted -- the preservation of the filibuster for the Supreme Court nominee. It seems, too, that the right didn't get what they wanted -- the end of the filibuster before Rehnquist retires. So long as the question was appellate judges, few would see why it was such a big deal. A lifetime appointment to the Supreme Court, however, is widely understood to matter, and trying to end the minority's options on that will prove significantly harder in the court of public opinion. Plus, the Republicans wanted this vote to happen and the Democrats didn't. That the vote was averted is, in the end, a defeat for them.

So I'm happy. Most of all because I think Democrats would've lost the fallout. Eliminating the judicial filibuster over some obscure judges just wouldn't, I fear, strike people as a big enough deal to shut down the Senate over. It may well be the principled move, but the idea of an up-or-down vote is intuitively appealing, and you can only grind government to a halt for so long before folks start getting pissed. Better yet, we can still hang this power grab on the Republicans' neck come 2006. As part of a wider argument about their abuses of power, it'll make perfect sense, and the fact that seven Republicans signed on to stop it will only strengthen our case. Plus, anything that makes James Dobson this angry is bound to leave me pleased:

This Senate agreement represents a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats. Only three of President Bush’s nominees will be given the courtesy of an up-or-down vote, and it's business as usual for all the rest. The rules that blocked conservative nominees remain in effect, and nothing of significance has changed. Justice Clarence Thomas, Justice Antonin Scalia, and Chief Justice William Rehnquist would never have served on the U. S. Supreme Court if this agreement had been in place during their confirmations. The unconstitutional filibuster survives in the arsenal of Senate liberals.

Crooks and Liars has more in the way of Republican reactions. They are not happy.

Update: Oh yeah. Lindsey Graham is apparently predicting one of the three judges promised an up-or-down vote will go down. Gentlemen's agreement, maybe?

Update 2: If nothing else, we've learned that senators have unreadable signatures. So far as I can tell from the document, here's who's on board:

Ben Nelson John McCain
Mike Dewine John Warner
Unreadable Robert Byrd
Susan Collins Mary Landrieu
Mark Pryor Olympia Snow
God Knows Ken Salazar
Lincoln Chafee A. Squiggle

Lincoln Chafee writes like a kid, Landrieu's got the best handwriting (followed by Collins and Snow, proving that women do indeed possess superior penmanship, maybe to make up for those inferior math and science skills [kidding!]), the majority seem to drop a number of letters from their names, and the senator on the lower right is clearly trying to hide his/her identity.

May 23, 2005 | Permalink


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» Dobson and Bauer are Pissed - That is a Victory from Life in Bush's America
If the comments coming from all the talking heads is any indication, the Democrats won on the Filibuster thing. I do not personally see that right now, so I am going to extend a little faith. I really feel that this was more of a Frist vs McCain is... [Read More]

Tracked on May 24, 2005 7:54:25 AM

» The Deal from Random Ravings
Wow...this deal is really causing some amusing things around the blogosphere. Some people like it and a lot of people hate it on both sides of the aisle. Though it looks like the concensus on the Right is that it was a bad deal, and on the left the r... [Read More]

Tracked on May 24, 2005 12:12:16 PM


An up-or-down vote may well be intuitively appealing, but the voters were with us. In every poll, no matter how it was asked, we were at worst even with the Republicans, at best 40 points up. When will Democrats finally show the courage of their convictions? This was not the time for deal-making, especially not a deal which left open the possibility for Brown to be put on the DC Circuit Court of Appeals, a fucking important court. The DC court takes on all appeals coming from federal cases, and is a mere step from the Supreme Court.

Posted by: ranodmliberal | May 23, 2005 10:52:30 PM

That's not actually true, random lib. The polling's been super unclear on this, with USA Today releasing one today that asked:

Which comes closest to your view: you want to see the filibuster rule preserved and you do not want those judicial nominees confirmed, you want to see the filibuster rule preserved, but you would like to see the Senate have an up-or-down vote on those nominees, or you want to see the filibuster rules changed so that those judicial nominees are subject to an up-or-down vote?

19% said preserve the filibuster, screw the vote, 34% said keep the filibuster, have a vote, and 35% wanted the rules changed to eliminate the filibuster. And I think a Senate shutdown would've decisively tilted that (even further) in the Republicans' favor.

Posted by: Ezra | May 23, 2005 11:02:46 PM

The name on the lower right is Daniel Inouye of Hawaii, I believe. Next to Salazar is Lindsey Graham. Joe Lieberman is next to Byrd's signature.

Posted by: Chris Woods | May 23, 2005 11:04:37 PM

OK, maybe I'm just dense, but just what-the-heck is the *deal* here? We get to "keep" the filibuster, as long as we don't *use* the filibuster? (and I don't buy any of the language about "extraordinary" - since "extraordinary" will be unilaterally defined).

Democrats now *will* vote for cloture - so there is no point to debate on the most vile of appointees - Republicans get their way. For this, Republicans will hold off their vote until the uppity democrats try again.

What a crock.

Posted by: Tracy Hall | May 23, 2005 11:24:22 PM

Here was the pledge:

The agreement said future nominees to the appeals court and Supreme Court should "only be filibustered under extraordinary circumstances," with each Democrat senator holding the discretion to decide when those conditions had been met.

Well, guess what'll happen when they don't get their way? They will claim "extrodinary circumstances". Then the Republicans will claim they broke their pledge and then you are back to square one except Owen, Brown and Pryor will have been confirmed. It's a recipe for failure. There is no objective test for "extrordinary circumstances".

Posted by: Robert Zimmerman | May 23, 2005 11:31:22 PM

"That's not actually true, random lib. The polling's been super unclear on this..."

OK, I retract that part. I was in a tizzy and going from (clearly faulty) memory. But I still disagree that these nominees are unimportant, especially as compared to Supreme Court nominees, and most especially Janice Brown's nomination. As I understand it, the DC court of appeals is evenly split, and Brown will tilt many decisions in the Republicans' direction.

Posted by: randomliberal | May 23, 2005 11:46:03 PM

The center seems to be trying desperately to hold... I think we ought to be encouraging this, really. A political civil war needs level heads in the middle that are determined to weork it out. We might not be pleased with this result, and no, I'm not really pleased with it at all, but, while the left continues to fight the right-wing extremists, someone has to rebuild the center as well. We don't like how they do it, but I'm glad they are trying.

Posted by: donna | May 23, 2005 11:53:05 PM

You guys need to read the deal closer. Extaordinary circumstances is followed by "and each signatory must use his or her discretion to decide if they exist." So right there, it's essentially what the senators deem extraordinary. Then it gets worse for the right:

"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."

That's essentially a promise not to go after the filibuster again during this congress. The filibuster is safe. Democrats will be wary of using it, but they most certainly can. And, in any case, the real issue is the Supreme Court. Democrats may lose trying to filibuster appellate nominees, but the last thing Bush wants is a really close examination of a SC nominee crazy enough to be filibustered. He doesn't want this procedural fight when the stakes are high, he wanted it when they were low, in order to win the media war against Democrats who were excised over a few random judges. He lost.

Posted by: Ezra | May 24, 2005 12:12:02 AM

My read on this is that "extraordinary circumstances" is a warning to the Bush Administration not to put forward candidates of like this group forward for any vacancies to the Supreme Court, and as such I chalk this up in the win category. Not a total blowout, but a win nonetheless.

While I didn't want any of the seven renominees on the Court of Appeals, I would have been willing to accept all of them there in exchange for a guarantee that no person similar judicial philosophy makes it to the Supreme Court. The fact that only two or three will make it is a plus.

An objective test for "extraordinary circumstances" is not needed, could not be obtained, and would not have been worth the effort to seek. "Extraordinary circumstances" is diplomatic language intended to send a message that in the event that the Administration nominates an extremist candidate for the US Supreme Court, Bush cannot count on these Republican moderates for support. The Democratic moderates were needed to ensure that the Democratic caucus abides by the agreement.

Posted by: pansauce | May 24, 2005 12:18:26 AM

Historical analogy; after the Pearl Harbor's of '02 and '04, this was the Coral Sea.

SCOTUS is Midway.

Posted by: SamAm | May 24, 2005 12:39:20 AM

With these seven promising to vote against any more attempts to end the filibuster for the duration of this Congress,

And we all know what the promises of Republicans are worth.

Posted by: Kimmitt | May 24, 2005 1:17:13 AM

"God Knows" is Lindsey Graham.
"Unreadable" is probably Joe Lieberman.
"A. Squiggle" is probably Daniel Inouye. I'm not quite sure how what he wrote had anything to do with his name, but whatever.

Posted by: randomliberal | May 24, 2005 1:17:42 AM

As for Graham's prediction, and the up or down votes:

Is there any sort of projection for the votes, particularly on Janice Rogers Brown? If that woman ends up on the fucking Supreme Court I will sit down and weep.

Posted by: b. schac | May 24, 2005 1:18:16 AM

I really hate to see Janice Brown on the crucial DC circuit court of appeals because of the impact on the regulatory agencies - she doesn't think the 1930's regulatory agencies should even exist. Maybe she will be the one that Lindsay Graham is hinting will go down on the Senate vote. I hope so.

I think we now know who will fill the next SCOTUS vacancy. Atty. Gen. Alberto Gonzales cannot be said to be 'extraordinary', and he'll get that slot, without a filibuster. Bush has a sure win on this, irrespective of the torture memos Gonzales wrote.

We get to fight another day on the nuclear option - it surely will come up again, possibly even in the 109th Congress if Bush nominates a real TheoReich-type person.

Posted by: JimPortlandOR | May 24, 2005 1:54:48 AM

My immediate reaction is disappointment. Not "the sky is falling", "they sold us out" outrage spewing from the fringes on both sides, but I'm disappointed nonetheless. First, I really was looking forward to the drama. This was going to be exciting no matter what happened, and now this seems completely anti-climactic. But I'm also disappointed because I think we snatched a lesser defeat from the jaws of an uncertain victory.

The probelm with this and every compromise floated before it, is that the Dems have to give something up right off the bat, while the Republicans are merely agreeing to the status quo. Sort of. The Republicans agree (for now) not to try and eliminate the filibuster if the Democrats (for now) agree not to use it except in extreme (?) circumstances.

So it seems like we effectively stopped half of these judges and retained the ability to filibuster a Supreme court nominee. Since the filibuster of Supreme Court nominees is the ultimate prize, we win here. It was never really about these particular judges for the White House. This was all about picking this fight, and provoking the nuclear option vote. They were counting on it, and counting on winning it. That's why the stakes were so high for the religious fundamentalists. It's all about Rehnquist's seat. If they won, they would have set the stage for ramming a true idealogue onto the Supreme Court.

So why am I lukewarm on this? Well, I think we might still have won. If that happened, it would really have split the Republican party, the White House would have tremendous black eye, and the fundamentalist religious right would have been dealt a big blow. Now, we'll never know. Doing that kind of damage was worth the risk.

And if we didn't have the votes to win? I liked Reid's plan for retaliation -- to abandon the Senate comity rules. This was mischaracterized as "the Democrats will shut down the Senate." Not true. Unlike Gingrich, the Democrats wouldn't literally close anything down, they'd just start offering up their own agenda. It is a courtesy that the majority party is allowed to set the agenda, and if the majority is going to toss all tradition and comity out the window, why should we oblige them further? Reid had tremendous legislation lined up and would have forced the Republicans to go on record voting it down. I liked that plan.

As it stands now, the Democrats will be forced to filibuster someone down the road, whether for the Appeals Court or the Supreme Court. Bush will make sure of it. And then, the Republicans, Fox and Rush will cry that the Democrats are renegging on their deal, and we are back where we started. Except the worst of these judges will already be comfortably on the bench, and we'll have let the Republicans off the hook—public opinion was with us on this, next time, I don't think we'll be so lucky.

This deal was probably the prudent move. But once in a while I want go for something more than prudent, I want to go for the throat.

Posted by: Mr Furious | May 24, 2005 1:55:07 AM

I wrote a bit about it:

I don't think this accomplishes much. The agreement has no teeth, it a create of compromise and unlovely to both side, more so to the GOP, IMHO. Next vacancy on the SCOTUS and we'll be right back here. A few of "hold your nose" nominees get on the appellate court, couple of them don't. A compromise in truest since, nobody's really happy with it.

I think the Sen Dan. Webster compromise of 1850 was better historical analogy than WWII pacific campaigns.

Posted by: Sonny | May 24, 2005 1:58:03 AM

"Oh yeah. Lindsey Graham is apparently predicting one of the three judges promised an up-or-down vote will go down. Gentlemen's agreement, maybe?"

Deal within the deal? I am hopeful. Because to some degree this compromise removes the Bush Loyalty Factor from the debate. Voting for cloture or voting to uphold the ruling of the President of the Senate (Darth Cheney) is to vote up or down on George Bush. Voting against Janice is just a minor uprising. Owens is a given, pro-business Texas judge: Done Deal. Rogers Brown is a different story. Despite Republican attempts to play the race/gender card it is hard to see that a No vote on Janice is going to turn around and bite any moderate's butt, particularly from the Right. Voting against a black woman from California is just not going to resonate in the back environs of Mississippi, nor will "sharecropper's daughter". Ignorant crackers invented the term 'uppity' to describe exactly this situation, to imagine that a No vote on Janice will move them to outrage is to imagine that the racial/sexual dial has moved a lot more than this outsider would suspect.

Posted by: Bruce Webb | May 24, 2005 3:45:13 AM

It's too early to say whether this was a big win for the Dems or merely a draw. Certainly Reid made some sacrifices (the worst being Brown, as JimPortlandOR points out above). But that's ok. In chess, it is fine to make big sacrifices -- even your queen -- if it will lead to checkmate. Since we don't know what will lead from this compromise, we can't say whether the compromises were worth it.

I'd like to see the Dems go after Owen more agressively. While Brown might be a worse judge being appointed to a more crucial Circuit, Owen's failings are more obvious to lay people. It's almost like Dems have forgotten that if they make a big enough stink about a judge, Repubs will be reluctant to vote "yes".

If Dems did a full court press on how Owen would frequently refuse to recuse herself from cases involving corporate campaign donors, I think it would be possible to make it very painful to vote for her.

Posted by: space | May 24, 2005 9:07:24 AM

Also, I think knocking Saad down was not a victory for Dems as much as it was one for the compromising GOP Senators. The guy had bipartisan opposition and this deal lets the GOP kill the nomination and blame it on the Dems.

Not that big of a deal, but that's my take.

Posted by: space | May 24, 2005 9:10:45 AM

Sure is reassuring to see Democratic supporters who will go to such great links to apologize for the idiotic sellout of America last night in the Senate. "Crisis averted." Only the astoundingly out-of-touch could write those words with a straight face.

Gawd help us when that kind of "intellect" is what passes for cutting edge on the left.

Posted by: Ivor the Engine Driver | May 24, 2005 9:19:19 AM


Please, go on living in your fantasy world. Only a moron would think this was a sellout.

Here is what the Dems lost:
1. A floor vote for Owens, Brown, and Pryor.

Here is what the Dems gained:
1. The right to contest those three on the floor (they still aren't confirmed, and it appears that it is a fait accompli that at least one will go down.

2. Preserving the structural integrity of the Senate.

3. Preserving Congress as a co-equal branch of government.

4. Driving a spear through the heart of Frist's presidential ambitions (and he is precisely the type of faux-moderate Repub that the Dems should fear in a general election)

5. Dividing a wedge into the Republican Senate Caucus (these same Senators will be more likely to cross the aisle in the future and may become the basis for a more permanent moderate-GOP coalition).

6. Enraging the GOP base (who will be less likely to either pony up cash or go vote for the GOP in '06 or '08).

7. Increasing the likelihood of an evangelical third-party candidate in '08, like Roy Moore, who will deliver the WH to the Dems.

8. The imprimatur of a handful of Repubs that the Senate rules should not be breached as Frist and Santorum wanted.

Now, it is theoretically possible that the Dems could have held out and gotten more. But the risk to the Senate as an institution was not worth trying to keep Pryor, Owen, or Brown off. Had Reid been Minority Leader since '00, I have no doubt that the Dems wouldn't have been in this position. But they made a good deal without compromising their principles.

Posted by: space | May 24, 2005 10:01:30 AM

Here is an aspect that is not so nice: Making deals in smokey back rooms out of the watchful eye of the public.

Those Senators who participated in this backroom deal circumvented the democratic process. This was not a move by the Senate et al. It was a deal behind closed doors and foisted upon other elected officials by a few, via collusion, without consent or approval of others.

Nice going there, Senators....

Posted by: Robert Zimmerman | May 24, 2005 10:20:01 AM

I think Susan Collins' handwriting is kind of sexy.

Posted by: Neil the Werewolf | May 24, 2005 11:06:14 AM

Considering what comes out of the Senate, grinding it to a halt might not be a bad idea. Aside okaying budgets, they are not really doing the people's business. We need less legislation, not more. Do we need more tax cust legislation or bankruptcy bills?

Posted by: Cathy | May 24, 2005 11:08:50 AM

"6. Enraging the GOP base (who will be less likely to either pony up cash or go vote for the GOP in '06 or '08)."

Bullshit. The GOP base will be fired up, and the Dem base will say what is the point? Save the filibuster and get Brown confirmed to SCOTUS? Because, make no mistake, that is now a higher possiblity than it was yesterday. She is now an "acceptable" judge.

"But the risk to the Senate as an institution was not worth trying to keep Pryor, Owen, or Brown off."

Yes it was. Yes it fucking was. When the bankruptcy bill gets overwhelmingly passed, when Brown and/or Owen gets confirmed to a circuit court, when McCain and Nelson are called "moderates" by liberal Democrats, it is time to blow the place up.

Posted by: bob mcmanus | May 24, 2005 12:20:00 PM

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