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May 23, 2005
Deconstructing The Deal

Based on reaction around the Internet, it appears that everyone except for the Senate and the media are unhappy about this compromise on judicial filibusters. Why? Let's take a look at the text of the deal and see if we can comprehend what each side won and lost.

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Obviously, this gives the White House three of the most contested and vilified judicial nominees in the process, although quite frankly, the Democrats never put together any good argument against any of these three. The Left has to be pulling their hair out over Janice Rogers Brown especially, as elevating a libertarian-conservative black woman will make it tougher to argue that the GOP opposes African-Americans in key positions. However, those are the only three guaranteed to get cloture out of five nominees mentioned.

Now in section B, the centrists have not pledged any guarantees of a vote for either Henry Saad or William Myers. However, they also do not call for either to be withdrawn, nor do they commit to blocking a vote. In fact, they have pledged to use their own discretion -- which may allow some of the Democrats to vote for cloture. I believe that both candidates may well get cloture, but that they have made a deal that some of the GOP centrists will vote against at least one of them in a floor vote, probably Saad. Saad may have sealed his own fate with his ill-advised e-mail attacking Debbie Stabenow in 2003, and the GOP may well have sacrificed him for that reason.

William Myers may just get filibustered, as the GOP probably doesn't want to give him up.

Now look at Part II:

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to 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.

Part A appears to agree to only participate in filibusters when personally convinced of extraordinary circumstances, which has been quoted elsewhere as signifying ethical issues and not ideology:

2. The fact that Senate Democrats are willing to allow cloture on Owen, Brown, and Pryor indicates that conservative judicial philosophy cannot be considered the basis for a filibuster, or an extraordinary circumstance.

The signatories may have agreed in this clause not to take direction from party leadership on filibustering or obstructionism, which for now means the Democrats. That would mean a coordinated filibuster might be enough to demonstrate bad faith ... or perhaps not. But in part B, it seems that the GOP signatories can exercise individual judgement on whether or not that is true. Its reliance on "continuing commitments" sounds like an out to bring back the Byrd option if the Democrats balk.

What does all this tell us?

1. Saad got tossed under the bus, although it may come from a failed confirmation vote rather than a filibuster, no matter what Reid says. If Reid demands a filibuster and all seven Democratic signatories support it, it will qualify as "bad faith," resulting in a resurrection of the Byrd option. I think all seven GOP signatories agreed to oppose Saad in a floor vote.

2. Myers may also have been tossed under the bus, although it looks from this that it may still be left to the individual conscience of the Senators.

3. Other than that, it appears that we have returned to status quo ante with an implicit admission from the GOP that filibusters are legitimate, and a matching one from the Democrats that they abused it. "Extraordinary circumstances" will probably be deciphered as ethics problems and not ideology, although the language after Part II-B seems to warn the White House about nominating strict ideologues to the bench from now on.

What we don't know is how this affects the rest of the nominees in the pipeline. One has to assume that the agreement explicitly names all those considered to have issues, and that all other nominees will be treated in accordance with the new rules from the centrists. That will prevail for as long as they can remain united in defense of their agreement.

In short, this could be merely objectionable and not a debacle, depending on how the GOP signatories interpret "extraordinary circumstances". One must suspect that this has already been defined confidentially within the group, and like Sean Rushton surmises, ideology doesn't play a part in it any longer. Under no circumstances can this be seen as a good deal for the Senate majority or for Constitutional rule. The net effect is that an even smaller minority in the Senate has hijacked the confirmation process than we saw during the filibusters -- and like all tyrannies, we can only hope for benevolent despotism rather than disaster.

And we can thank Bill Frist for his lack of leadership and resolve for taking a majority and turning it into a minority. Not One Dime for the NRSC as long as Frist remains majority leader, or for the Seven Dwarves ever. Patterico is on board with that pledge as well.

UPDATE: Mitch Berg starts off his open letter to Bill Frist thusly:

To: Bill Frist, US Senate. From: Mitch Berg, Schmuck Citizen and pissed-off former GOP contributor Re: Your Infinite Cretinism

Read the whole thing. God bless Mitch, he knows how to say what I really feel.

UPDATE II: I'm surprised that Hugh hasn't said much more than this:

It is impossible to say whether this is a "terrible" deal, a "bad" deal, or a very, very marginally "ok" deal, but it surely is not a good deal. Not one dime more for the NRSC from me unless and until the Supreme Court nominee gets confirmed, and no other filibusters develop. I won't spend money on a caucus supporting organization when the caucus can't deliver a majority. Mark Kennedy and other Senate candidates with spines, but not for the NRSC.

I suspect that Hugh wants to see how Saad and Myers gets handled by the 14 signatories as a signal flare for the rest of the slate. If the Democrats extend their filibusters and the GOP fails to respond, then we'll know the deal is a complete surrender. If both get defeated in a floor vote, we'll know the filibuster is dead for this session of Congress, barring ethics violations.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at May 23, 2005 8:39 PM

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