The Center Scolds! It's not clear, Dan Balz points out, whether the somewhat vague deal struck by 14 moderate senators actually resolves the judicial filibuster issue even for this session of Congress. Democrats will be still able to filibuster future nominees, including any Supreme Court candidate, under what they decide are "extraordinary circumstances." Republicans get to revive the anti-filibuster "nuclear option" if they believe Democrats are finding "extraordinary circumstances" where there aren't any. ... So what did the 14 moderates actually accomplish with their deal? "They kicked the can down the road," according to Ross K. Baker of Rutgers--by an eerie coincidence the very cliche kf chose for yesterday's filibuster-related recommendation! ... True, the posture of a future controversial Bush nomination will differ from the kicked-can scenario envisioned below. Instead 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. But the mere postponement--until, presumably, a Supreme Court seat opens up--favors the Democrats, for the reasons outlined earlier. 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, as Balz notes--unless there is some hidden codicil forbidding Dems from declaring out-of-the-mainstream ideology an "extraordinary circumstance." ...
P.S.: The deal seems so favorable to the Dems, one wonders whether it was struck under the implicit threat that Democrats would block any "nuclear" vote by just voting for cloture (the "Blackberry Option"). ...
Update: Geoffrey Stone's analysis is more nuanced, but he still gives the Dems an advantage. ...
P.P.S.: One question is whether the Dems can yell "extraordinary" and filibuster if Bush in the future names to the Supreme Court one of the three people (Owen, Brown, Pryor) the Dem "moderates" have just agreed not to filibuster for lower federal courts. My reading of the deal is that they can, especially if they are able to latch onto something one of the three writes between now and then. But Republicans would find it easier to yell "bad faith" for these three than for other nominees. If the Democrats have just given Janice Rogers Brown a free pass to the Supreme Court, maybe the deal isn't as favorable to them as I think it is. ...
More: Steve Smith thinks the Dems could use Bush's failure to "consult" with Democratic senators under the final clause of the agreement as the basis for an "extraordinary circumstance" claim. ... 2:29 A.M. link
Monday, May 23, 2005
Kick the Can Down the Road: David Brooks says the Senate's moderates can't reach a deal on the filibuster question because they're unprincipled wimps. But surely the reason is that this deal is intrinsically difficult to reach--it depends on the definition of the "extraordinary circumstances" the Dems would reserve the right to filibuster in. It's hard to see how you come to an agreement on that issue without privately naming names (e.g. "We promise not to filibuster Janice Rogers Brown" or "If it's Janice Rogers Brown, you can filibuster"). ... The Blackberry Option: Meanwhile, the estimable Walter Shapiro has joined those rooting for a deal. But I still don't understand why a deal--a deal that would at least limit the Dems ability to filibuster an undesirable nominee for the rest of the Congress (while confirming five of seven appellate nominees)--is preferable to confirming all seven appellate nominees and postponing the filibuster fight until a Supreme Court appointment is at stake. The Democrats can accomplish the latter result by simply voting for cloture for each current Bush nominee--avoiding a "nuclear" vote on the filibuster by the simple expedient of not filibustering. ...
There's a reason, after all, why Sen. Frist has chosen to have the filibuster fight now, when the voting public's not paying attention. The reason is that he has a greater chance of winning now. That's the same reason the Dems should want to have this whole debate later, when higher stakes will give it higher visibility. If the "nuclear option" is on the line when President Bush nominates a Supreme Court justice, that in itself will circumscribe his choice. He won't want to name someone too controversial, lest the public side with the pro-filibuster Dems.
And I still don't see why this kick-the-can-down-the-road strategy isn't obviously the course Dems will pursue (assuming there's no "moderate" deal and they don't have the votes to just beat Frist). That means, unless I'm horribly wrong, you will not see Frist win a "nuclear" vote on Tuesday. ... Remember, you heard it here second. (The Note was first.) ...
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