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September 28, 2005
A Battle Only Postponed

ersailWhen fourteen Senators gathered to congratulate themselves on hijacking the leadership of the upper chamber on judicial confirmations last spring, they proclaimed that they had, in Robert Byrd's words, "saved the Republic" by avoiding a rule change on filibusters -- a parliamentary manuever for which Byrd himself changed rules on four separate occasions. Despite the opportunity to get the matter resolved by the full Senate while working on lower-level judicial appointments, the Gang of 14 instead imposed the Memorandum of Understanding on both sides, with the seven GOP Senators essentially ceding some legitimacy to filibustering judicial nominees on ideological bases.

That will now come back to haunt them, as the Democrats get ready to crank up another filibuster regardless, it seems, of who the President nominates to replace Sandra Day O'Connor. As I predicted, the vaunted MoU turned out to be nothing more than a Versailles Treaty, a simple postponement of war rather than any kind of resolution:

The roster of those threatening a filibuster includes liberal and moderate Democrats, supporters and opponents of John G. Roberts Jr., Democratic National Committee Chairman Howard Dean, and at least one of the seven Democratic senators who were part of the bipartisan "Gang of 14."

Democrats have splintered almost evenly over Roberts's nomination as chief justice, leading to frustration among party activists who think their elected leaders did not put up a serious fight against him. Pollsters have told party leaders that a show of opposition against Bush's next nominee could be crucial to restoring enthusiasm among the rank and file on the left.

In an interview, Dean said Democratic unity is essential in the upcoming battle and that the party "absolutely" should be prepared to filibuster -- holding unlimited debate and preventing an up-or-down vote -- Bush's next high court nominee, if he taps someone they find unacceptably ideological. ...

The possibility of a filibuster comes only a few months after an agreement that supposedly eliminated such threats. The Gang of 14 agreement barred filibusters against judicial nominees except under "extraordinary circumstances." The compromise also blocked Republican threats to change Senate rules to bar the use of filibusters to block judicial nominations, a step considered so drastic it became known as the "nuclear option."

Owen and Brown were cleared for confirmation to the appellate courts as part of that agreement, and Republicans said then that Democratic acquiescence in their confirmation meant the opposition party could not use ideology to bar future Bush nominees. But Democrats rejected that interpretation and said this week that Owen, Brown and several others believed to be under consideration by the president face a likely filibuster if nominated to the high court.

The Democrats obviously didn't learn any lessons from the Roberts confirmation battle, a debacle that they imposed upon themselves. Despite the warnings from some of their leadership to keep their heads, the Democrats instead went on the attack against Roberts only to find themselves outclassed and outgunned by the brilliance of the nominee. They got away with filibustering Roberts the first time around due to the media's lack of interest in appellate court nominations, but that will not hold true of Supreme Court confirmations -- and they found that out, painfully, with Roberts.

Almost anyone Bush nominates will probably face a filibuster at this point. The money on the Left now demands it, and Dean's signal shows that some Democrats feel they cannot win an election without obstructionism, the last two electoral cycles notwithstanding. The GOP needs to give them what they want and let the Kennedy-Schumer-Biden triumvirate of ineptitude loose once again on prime-time TV. The President needs to nominate someone with the same kind of skill at drawing out the innate foolishness of the Democrats on the Judiciary Committee as Roberts -- which is why I hope he will nominate Janice Rogers Brown, a brilliant legal scholar possessing a keen judicial temperament.

Now the Seven Republican Dwarves of the Gang of 14 will see the folly in compromising with the Democrats. They now have to make up their minds about whether to support Bush's nominees to the Supreme Court or to protect a filibuster that has been abused by the Democrats to overturn the results of two elections in terms of controlling judicial nominees. They could have resolved this four months ago, with the stakes less than today and with a lower level of media attention. Now they find themselves only a year away from an important election cycle, where the voters will surely remember whether they supported a Supreme Court pick rather than an obscure appellate nomination.

The time for the Byrd option has arrived. This time, let's get it done quickly and firmly, so that we can minimize the risk of wavering. I put off the Not One Dime campaign to give the MoU a chance to succeed, but this shows that the issue of the Constitutional prerogative for the presidential power to nominate jurists has never been resolved. We'll be watching those seven GOP Senators and the GOP leadership before we give a single dime to the NRSC.

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Posted by Ed Morrissey at September 28, 2005 6:46 AM

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