May 24, 2005

About that filibuster compromise...

Yes, I know I haven't written anything about it yet. I feel that I can't even really see what the true agreement is: what's going to count as "extraordinary" in the future? Is that anything like "out of the mainstream"? In other words, they'll filibuster whenever they have the political will to filibuster.

I've read a few commentators and listened to some talk radio, and my very basic, instinctive reaction is that all the claims about victory, tauntings about defeat, and expressions of satisfaction about agreement are part of playing a continuing political game. I didn't feel like writing even that, but then for some reason, Kausfiles focused my thinking:
So what did the 14 moderates actually accomplish with their deal? "They kicked the can down the road" .... [But i]nstead of fighting the "nuclear" fight all over again from square one, Dems and GOPs will first wage a new rhetorical war over what is "extraordinary" and what is "bad faith." The need to justify this loaded rhetoric presumably makes a filibuster battle at least somewhat less likely.
So, yes, when the subject comes back up, it will get discussed in a new way, with reference back to the terms of the agreement. But will the discussion really be that different from what we endured over the past week or so? The agreement says "each signatory must use his or her own discretion and judgment in determining whether [extraordinary] circumstances exist." How will this new argument go? No, you weren't really using your "discretion and judgment" just then, you were doing something else.

Maybe having had a trial run, they'll do a better job of predicting how bad they'll sound and will back off. But if there's a Supreme Court opening, too much is at stake.

Kaus (and others) assume the recent experience will cause Bush to nominate a more moderate jurist for the Supreme Court:
[T]he mere postponement--until, presumably, a Supreme Court seat opens up--favors the Democrats.... Bush will need to nominate someone who will either avoid or win such a somewhat-less-likely filibuster battle when the stakes are high enough for the bulk of the voters to be paying attention. This effectively narrows Bush's choices...
Is that really true? After waiting all this time to get a Supreme Court appointment, Bush is going to pick a different person -- because of this compromise? That doesn't seem Bush-like. And if more people are paying attention and more is at stake, who will decide it's a good time to back down? I predict Bush picks a staunch conservative, the Democrats fight with everything they've got, and that won't be enough to defeat the appointment.


David Manus said...

I agree, it will be a conservative nominee, and he will win, with one big if: the Dems are relentlessly researching possible nominees for skeletons- let's hope the Republicans will be as prepared and educated about the nominee. Withdrawing a name because of some impropriety or really controversial ruling/writing would be a very bad thing.

Kathleen B. said...

I also doubt that Pres. Bush would compromise. To do so would at least go against his track record. The key will be whether the moderate Dems agree that the nominee is "extreme" and thus will support a fillibuster. With the fillibuster, the nominee will not go through.

EddieP said...

As usual professor, your analysis is "spot on". Absolutely nothing to disagree with.

10ksnooker said...

Frist was on Hannity at 5:00.

He says he signed onto nothing.

He is committed to every judge out of committee gets a vote.

Any filibuster, he triggers the Constitutional option. No exceptions. He is the leader afterall :-)

This deal is no different than if the dems realized they couldn't defend and decided to defer, vote for cloture, hope to keep the filibuster option, probably for the Supreme Court.

I heard Graham earlier say any filibuster by anyone, he votes for the Constitutional option.

Frist said the nominees would be pushed through committee as quick as possible. The game is on, the ball is in play. Keep those emails and phone calls coming. Just avoid the land mines laid by the media party.

As we like to tell those Iraqis, democracy is a process not a destination.

Marty said...

That's when the dems will try to get backing for a fillibuster which (I hope) will fail miserably.

You know? I wish just one Republican Senator would remind Senator Byrd on the floor that he is one of those Senators that Fillibustered the Civil Rights Act of 1964. (I'm sure the news media would find a better sound bite elswhere that day.)

tommy said...

I think one of the most likely explanations is the Democrats realized they couldn't filibuster everything and that if what they really wanted to do was try and influence a Supreme Court nomination they needed to keep that option more viable.

I don't really think it changed anything other than it looks like some of the Judges are going to get a vote. The rest is just delayed but in the meantime Bush gets a vote on judges he wanted to appoint so I guess he comes out a little ahead at least in the short term.

vnjagvet said...

I agree with Ann.

I think there was a lot of heat, but little light (to use a cliche) on this issue by zealots on both sides in the blogosphere and elsewhere in the past 24 hours.

One thing I think has happened upon reflection, is that some comparators have now been established against which to test the BS factor of opponents to future Administration appointees.

It will be difficult to argue rationally that anyone of the same general philosophy and career accomplishments of the troika of Rogers Brown, Owen or Pryor are "out of the mainstream", "extreme" or that they give rise to the "extraordinary circumstance" which justify for the Dem 7 to resort to supporting a filibuster.

The meaningful audience for the trashing in this regard, remember, will not be the acolytes of either part of the political spectrum. It will be the political middle which was the battleground of 04.

Future filibusters will be viewed by those who are rational by that standard, I believe.

Sandi said...

As to what has been accomplished, a free pass was given to three nominees for the appeals court. Thats it.

What is so wrong here is that Senators are trying to extend the advice part of the "advice and consent" clause to cover the nominating side of the process. It only belongs to the post nomination process.

Read Federalist Papers #66 and Federalsit Papers #76 to see the rationale for leaving the power of nomination entirely in the hands of the executive branch.


Gerry said...

I wonder exactly how things would play out if President Bush (and your "that wouldn't be Bush-like" comment strikes me as particularly correct) turns around and nominates, after consulting with various Senators (and ignoring the advice he doesn't like), Miguel Estrada?

vnjagvet said...


There are plenty of literalists reading this MOU. I am not one of them. I think the provisions stating the need for more input in the pre appointment is windowdressing, and certainly not binding on anyone in the White House. I am confident it will be read in the White House as exactly that.

Precatory language from the Senate is nothing new. It has been requested my various Senators and groups of Senators forever (for a great treatment of Senate doings of 50 years ago,see Caro, Master of the Senate). Senator Foghorn Leghorn was one of the great Fred Allen characters in 1940s radio, and was always very congnizant of his Senatorial Prerogatives.

I think this President has shown an ability to give such self importance its just due over the past 41/2 years. Somehow, I don't think he will change.

Sandi said...

Gerry, the only way he could ignore the "advice" would be if he tried to re-nominate a justice that was voted down. No president would do that.


Sloanasaurus said...

Despite the conservative grumblings, I think that the "deal" is a crushing defeat for the Democrat filibuster strategy. Republicans gave up two nominees for an end to the filibuster.

Most think that the language "extaordinary circumstances" is a hollow term. We need to remember that the language was not agreed to by Ted Kennedy and Harry Reid. The language was agreed to by 14 centrist Democrats and Republicans. Further, Grahm and DeWine have already stated publicly that they would vote the Constitutional option if they believed that there was no "extraordinary circumstance."

THis deal is a killer for Democrats, but it allowed them to get out quietly. Democrats abused the filibuster to begin with. This deal allows them to step down with some dignity.

David Manus said...

today the WSJ expounds on my comment of yesterday:

But there is a cynical irony here, too. To defeat a Supreme Court nominee, liberal interest groups will now be obliged to manufacture the very "extraordinary circumstances" that would give Democrats among the Gang of 14 an excuse to filibuster. Thus they will have even greater incentive than before to dig through a nominee's personal and professional life for any mud they can throw against him. In the name of consensus and comity, in short, these 14 "moderates" have increased the chances that the Senate will witness a future, bloody Borking.

Ann Althouse said...

Comments don't seem to be publishing at the moment. I'm trying to get Blogger to help me...

Bruce Hayden said...

Is Estrada really that "extreme"? Without a solid judicial trail, I would suggest that it is hard to tell.

Of course, one thing that might sink his nomination for even dog catcher in the Senate is his close friendship with Ann Coulter.

dax said...

This is a McCain power-grab with a dose of some Bush payback thrown in.
What Frist needs to do is go forward and bring all nominees to a vote. What's McCain and the other six going to do, vote with the Dems?
If Frist decides to go with this "deal" then he's capitulated power to McCain and the fillibuster issue won't go away and the judicial nominee process has been turned on its head.
The wild-card is: What's Bush doing right now?

gutshot said...

Bush should expedite the process of getting his nominees to the floor...especially the conservative ones. I think he needs to force the Democrats' hand and see their bluff. The Republicans must unite as soon as the moderate Democrats show signs of voting against cloture. One could argue their majority exists because the masses are sick of activist judges construing new rights into the Constitution.

David Manus said...

weird, my final comment disappeared. Did I displease you in some way?

jjoats said...

TOON OF THE DAY: "Newkular Option"Avoided

Jon Burack said...

I suspect your confusion about what all this means is exactly the point of it. It was to provide cover for all involved. The Democrats get to back off their obviously failing and absurd claims that these nominees were "extremists" whose defeat required an extraordinary precedent-breaking use of the filibuster. The Republicans get to back off the position the media and Dems would clearly have succeeded (totally unfairly) at putting them in of breaking Senate traditions and comity. And the 14 "moderates" in particular get to preen and primp as saviors of the Republic. What a hoot.

In the end, I actually think little will change, as you suggest. Bush will push ahead with a conservative Supreme Court nominee and the real battle will be joined. All this otherwise is skirmishing in anticipation of that. Even though Republicans are rightly upset at the failure of nerve ("come on, it never was a 'nuclear' anything, so pull the damn trigger), I think the Republicans will win in the end. If any one thing will register with the public from this agreement it is that in the end the Democrats really did NOT believe these nominees to be out of the mainstream or worth a knock-down drag out fight. It will be very hard for them, therefore, ever again to convince anyone they really think this of any other future nominee. And if the pres nominates Owens for the Supreme Court that aspect of things could make for truly comic high drama.

Jon Burack said...
This comment has been removed by a blog administrator.
Ann Althouse said...

If anyone is reading this and has any idea how to solve my Blogger problem, please email me. I have been unable to post to my blog for nearly a day and unable to reach a human being at Blogger to get any help. I'm at my wit's end.