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Okay. Well. Anything that somewhat humiliates Bill Frist can't be all that bad. But. I'm not at all enthusiastic about this deal. As I see it, three different things were at stake. One was the high-level principle about whether or not it was okay for the Senate to operate under Calvinball rules. Democrats seem to have made no progress on this front. Another was the low-level issue that several of these nominees, and Janice Rogers Brown in particular, will make horrible judges. Democrats gave ground on this front. In the middle was the pseudo-principle that the filibuster is a pillar of American democracy. It was here -- on the party's most questionable contention -- that they seem to have made all their gains. That seems pretty dubious to me. I would much rather have made "concessions" on the filibuster as such as gains on the question of who gets to be a judge.

Now if it turns out that not only does Rehnquist retire, but O'Connor or Stevens does too, and Bush nominates a real stinker, and the Democrats filibuster, and the Republican moderates stick by the deal under those circumstances, then the Democratic dealmakers will be vindicated. That strikes me as unlikely on a whole bunch of fronts. When someone has a plan that depends on moderate Republicans not caving under pressure, it's time to ask for a new plan.

UPDATE: Hm. I will agree with Josh that if Dobson and Bauer are this pissed, the deal seems to have some merit.

May 24, 2005 | Permalink


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» The conventional option from The Ethical Werewolf
Here's what I'm thinking: it's time to declare an end to John McCain's hopes of ever becoming the GOP nominee. If you think Dobson's going to be mad at Frist for not delivering the goods, think how he'll feel about McCain robbing the train. [Read More]

Tracked on May 24, 2005 1:42:51 AM

» Celebratory ice cream and why I'm celebrating a big victory from Fear of Clowns
Here is where the Republicans lose big: Their messaging that filibustering judicial appointments is unconstitutional and this is the majority belief just got sunk. Blotto. Out of play. [Read More]

Tracked on May 24, 2005 6:15:45 AM

» Winners & Losers on Filibuster Compromise from bennellibrothers.com
As everyone can see, Razor beat me to the punch on this one and has thus stolen my thunder as I cheer for the moderates in the Senate. Everyone knows this is a fight for the procedure of nominating a... [Read More]

Tracked on May 24, 2005 9:34:14 AM

» Winners & Losers on Filibuster Compromise from bennellibrothers.com
As everyone can see, Razor beat me to the punch on this one and has thus stolen my thunder as I cheer for the moderates in the Senate. Everyone knows this is a fight for the procedure of nominating a... [Read More]

Tracked on May 24, 2005 9:39:20 AM

» Frist Fades to Black from Tom Watson
I do believe we have been betrayed by those we elected to represent us. We have been handed over to the enemy for the sake of [Read More]

Tracked on May 24, 2005 10:50:23 AM

» Frist Fades to Black from Tom Watson
I do believe we have been betrayed by those we elected to represent us. We have been handed over to the enemy for the sake of [Read More]

Tracked on May 24, 2005 10:50:50 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 12:12:38 PM


I would have loved to have seen the Dems win tomorrow, kill the nuclear option, and hand Frist his head on a plate. I think it would have been a dangerous precedent if the majority had changed the rules -- just because there was no one to stop them. But my crystal ball didn't show a sure Dem win. The vote tomorrow was a crapshoot and could have been a disaster.

I think the compromise may have been the best alternative. You might not see it as a Dem win, but it sure is a Frist loss -- a Bush loss too. The right wing is going to go beserk. Time will tell how it will all work out, but meanwhile I think it's smarter to play this as a win for sanity and bipartisanship over the radical right.

Posted by: JJF | May 24, 2005 12:55:51 AM

Dunno... I'm inclined to agree with JM re: Dobson & Bauer, because they definitely think ahead, whatever else we can say about them, and who doesn't like watching their little wingnut heads spin? Still, we're going to end up with some genuinely nasty & corrupt judges on the circuit courts for the rest of their natural lives, and that's a problem. I guess the best we can hope for on that front is that even the other right-wingers on the affected courts will end up more like O'Connor & Kennedy in trying to salvage some legitimacy.

I guess another bright spot is that at least they won't be taking campaign contributions from now on, so the corruption won't be quite so blatant, although they'll certainly remember who their patrons are.

Posted by: latts | May 24, 2005 12:57:09 AM

I'm not quite clear what Matthew's position is, but I at least hink I agree: despite the right-wing wailing (and I've read most of it), I don't think the deal is all that bad for Republicans nor all that great for Democrats.

If I had my druthers, I would like to keep the filibuster principle in place. I agree with Matthew that the filibuster is essentially conservative. Moreover, I think Matthew agrees with me that eliminating the filibuster for judges is likely to lead to eliminating the filibuster for legislation (which I think Democrats would like). Hence, if at all possible, my preference was to confirm as many judges as possible without eliminating the filibuster. And I think that's been accomplished.

Moreover, the two judges who will not be confirmed are less important to me than the three judges who will be confirmed (Owen and Brown especially). So that is also a plus.

Finally, I agree with most of the commentary that this is basically kicking the issue down the road. It is just too early to tell who will benefit from the deal, and the outcome depends on a number of variables. How will the 7 Dems interpret "extraordinary circumstances"? Will it mean "anyone PFAW doesn't like"? Or will it mean "there is some huge Abe Fortas-like ethical problem out there"? We don't know. Moreover, if the Democrats interpret "extraordinary circumstances" too liberally, what will the Republican moderates do? DeWine and Graham both said that if the Democrats abused the "extraordinary circumstances" loophole, they would consider the deal to be in bad faith and thus they would be released. In that case, there would be 50 votes for the nuclear/Constitutional/Byrd option (with Cheney breaking the tie).

It seems to me that Bush ought to try to figure out how the Dems will react as quickly as possible, by nominating hard-right judges, and seeing how the Dem 7 respond. If they allow them to pass, then we (on my side) can feel good. If not, then we would have the opportunity to start working on DeWine and Graham as soon as possible.

Posted by: Al | May 24, 2005 1:01:39 AM

There is no way the Republicans will keep their end of the bargain, so this is a nearly an unmitigated win for them.

Posted by: Kimmitt | May 24, 2005 1:02:47 AM

Oh yeah, one other plus for our side: this deal essentially ends the 2008 hopes of McCain and Frist. Yeah!

Posted by: Al | May 24, 2005 1:03:51 AM

the dirty bomb has exploded

Posted by: Texan | May 24, 2005 1:04:39 AM


As a partisan Dem, I'm not thrilled with this deal, but its decent. A 6 or 7 out of 10 with an asterisk?

Apparently, Lindsay Graham said that only 2 of the 3 getting an up/down vote are going to pass, which suggests to me that JR Brown (a lunatic fringer on an important court) will get shot down. Thats really all I see the Democrats (or at least liberals who don't live in the court P Owens will reside) losing in the short term, although the long term implications are yet to be seen. I'm resinged to Owens, but she's going to an already pretty far gone (from a liberal perspective court) so that doesn't matter so much.

As to the principle of the filibuster, we'll have to see. Amazingly, I agree with Al in that they've basically kicked a lot of issues down the road. What really matters is if O'Connnor and/or Stevens (not Rehnquist - that'll be one right winger for another) retire Bush sends up a real winger. Than we'll see how things play out.


Posted by: Ben P | May 24, 2005 1:08:21 AM

Is it just me, or does Priscilla Owen look an awful lot like John Ashcroft in a wig?

Posted by: liver | May 24, 2005 1:28:09 AM

"I will agree with Josh that if Dobson and Bauer are this pissed, the deal seems to have some merit."

Deeply fuzzy thinking.

If Ralph Neas is unhappy with something, should Republicans therefore be automatically happy?

Dobson has his own agenda, and some of his demonstrated happiness or unhappiness may be kabuki for his followers.


From what I can see at the moment, this was a very bad deal.

A game of chicken was taking place, and Reid blinked first - despite the fact that he had less to lose if both cars went off the cliff.

As Al correctly (!) says:

"my preference was to confirm as many judges as possible without eliminating the filibuster. And I think that's been accomplished."

Posted by: Petey | May 24, 2005 1:29:41 AM

Maybe another part of this that hasn't really been considered is this specific group of senators. These 14 are basically the moderates of the Senate (plus Specter, and probably a few others I'm missing). So does this ragtag bunch split up after only one hit? Or does this bi-partisanship signal a move away from the political polarization we've been experiencing these past couple of years? In short, what are the political implications of this deal? Is it so outlandish to think of two of these bunch on a ticket in 2008? Is this the beginnings of tne end for the third american party system?

I'm phrasing this all in questions cause I have no clue what the answers are. It's a point, however, that I'd love to see investigated.

Matt, consider this an official post request. Write something about this...or is this such a non-issue that it doesn't merit analysis?

Posted by: B. Schac | May 24, 2005 1:30:47 AM

Al pulls a Dan Kervick: a long, thoughtful, sane analysis. Whoulda thunk.

Posted by: arr | May 24, 2005 1:32:15 AM

One last thing before I go, the most interesting thing to me is that the deal essentially ignores Kavanaugh and Haynes. What does that mean? Dem whispers are that there is a secret deal that those two will be rejected somehow. Repubs say that's not their understanding.

So what's the deal-eo? Will they just be voted down? I would have thought that the two would be covered by the "extraordinary circumstances" provision. Are they "extraordinary circumstances"? Perhaps the the issue won't be kicked as far as we think, if the failure to address these two turns out to be a dealbreaker...

Posted by: Al | May 24, 2005 1:32:33 AM

"and the Democrats filibuster, and the Republican moderates stick by the deal under those circumstances"

The deal doesn't even require Republican to stay within the framework if they decide the filibuster isn't prompted by extraordinary circumstances.

We have peace in our time.

Posted by: Petey | May 24, 2005 1:32:54 AM

For now, it's a very slight win for the Democrats. There are 55 GOP senators. Yes, a fair percentage of them should rightly know better than to pull something like the nuclear option. At the same time, they could suffer 5 defections and still detonate. It sucks that The World's Greatest Deliberative Body might devolve to such deterministic and Darwinian lines, but questions of power seem to sheer institutional comity away at lighting speed (ahem, Supreme Court). The most important thing from here out is that the Democrats not allow themselves to be boxed into a worse political-PR situation than before. The deal is about constraining Democrats, but I don't think there was a scenario in which we weren't going to be constrained; certainly the GOP moderates weren't going to do us the favor of making their voting intentions clear beforehand.

The deal got done. So instead of a filibuster requiring 40 votes, as before, it now requires 51. Which means any 2 of the GOP 7 can, at any point in time, detonate the nuclear option if so aggrieved. Not the best situation in the world, but there are at least some contraints also placed on the 7 Republicans. I can't imagine there's that much of a desire on their part to refight the previous 2 month's battle. And they did say, even if not bound by much, that another rule change wouldn't be attempted.

So, I doubt the Democrats will be able to filibuster a Supreme Court nominee, even one Graham and DeWine may not find personally appealing. The pressure on those two will be ratcheted up, ah, starting now, but especially when Rhenquist retires.

The Democrats, if faced with a stinker of a nominee who nevertheless has majority GOP approval will have to make a decision on how to lose. That's the probable endgame; the de facto destruction of the filibuster for any candidate any 2 of the 7 may like. Still, that keeps at least 4 of the current nominees of the bench, and raises, even if just by a fraction, the chance of stopping a truly terrible SCOTUS appointment. Considering the alternatives, it could be worse. Then again, there was at least some chance of winning the vote. I think we've only delayed the inevitable. And whatever the case, the furious GOP bloggers tonight give far too much creedence to the honor and independence of their moderate senators.

Posted by: SamAm | May 24, 2005 1:56:29 AM

If If Rogers-Brown goes down on a floor vote this is a good deal. But with Rogers-Brown on the DC Circuit and a very conservative SCOTUS we are truly screwed 5-10 years down the line.

Just negotiating a weak cease-fire and postponing the war. Petey had best line:"Peace in our time."

Schmitt Accepts, grudgingly

RIP Jack Bauer, who saved the world a lot. Sutherland not going to be around next year.

Posted by: bob mcmanus | May 24, 2005 2:19:02 AM

"When someone has a plan that depends on moderate Republicans not caving under pressure"

Oh I trust the integrity of those seven Republicans more than the seven Democrats. McCain just gave up any Presidential ambitions, and Graham has serious issues with the Republican base.

Posted by: bob mcmanus | May 24, 2005 2:22:27 AM

Oh I trust the integrity of those seven Republicans more than the seven Democrats. McCain just gave up any Presidential ambitions...

What if Bush and/or Rove consult McCain and the Supreme Court nominee and actually listen to him. Doesn't that solve the integrity problem, since the seven republican signers can say that there's no way this guy constitutes an extreme circumstance, McCain picked. Now I have no idea what McCain's judicial preferences would be, so maybe that scenario would play out fine, but how sure are you?

Posted by: washerdreyer | May 24, 2005 2:30:29 AM

Other thoughts; there will at least be some centripetal force placed on members of either side who may threaten to break the agreement. These guys and gals put their prestige on the line to stop a Republican move, and that has to be considered a good thing considering the new status quo preserves the previous rule, even in weakened form. Again the GOP will have to be the aggressor if they want to change things; the agreement gives more leeway to the Dems, though obviously not by a lot.

Also it's shear, and Rehnquist, and now a very disturbing idea for a new line of black tights with gold bars on them.

Posted by: SamAm | May 24, 2005 2:35:58 AM

The strategy of the nuclear option was based on momentum, unyielding partisanship, and relative obscurity. All of that has now been lost.

If the nuclear option is going to go off, better that it go off during a Supreme Court nomination, when more people will be watching and when, quite possibly, the midterm elections will be that much closer.

Photos showing moderate Republicans making deals with Democrats to preserve the filibuster will tend to defuse the wingnuts' argument that Democrats are evil demons with whom compromise is both wrong and unnecessary, and that the filibuster is an unconstitutional abomination. Moreover, despite their face-saving threats, these Republican dealmakers might have a hard time flip-flopping back over to the pro-nuclear side ("I'm not a tool of the wingnuts! I voted against the nuclear option before I voted for it!") -- especially when the consequences have to do with Roe v. Wade, rather than with some judges that nobody outside the blogosphere has even heard of. I mean, if these Republican moderates didn't feel sure enough to vote for the nuclear option outright, why would they feel sure enough to do it as a flip-flop?

Now, to rebuild momentum for the nuclear option, the wingnuts must once again orchestrate several weeks of spittle-spewing, gay-baiting, and dubious Hitler analogies, while simultaneously declaring jihad on their own party. This kind of wingnut publicity can only be good for Democrats.

Posted by: PurpleStater | May 24, 2005 2:55:01 AM

The proof will be in the pudding. Owens is in, that is a given, but one more pro-industry applelate judge is no more than we would have gotten with any other Bush choice. Now Janice is a different question. Absent nuclear option is she really a shoe-in? Because up until a few hours ago this was all about Bush vs the Democratic Party and despite recent slippage Georgie had some traction. But now up or down on Rogers Brown becomes up or down on a justice with some serious ideological baggage.

It would not surprise me if there were deals within deals here.

Posted by: Bruce Webb | May 24, 2005 3:07:00 AM

I think the Republicans got away with a massive bluff.

Posted by: W.C. Varones | May 24, 2005 3:33:41 AM

It seems that one positive aspect of this from a Democratic standpoint has been overlooked. That is that the current situation may force Bush to nominate more moderate judges as any time he picks are real whacko, the Dems can choose this moment to have their public battle.

Bush, Frist and especially the moderate Republicans don't want to refight this whole thing over someone who is far out of the mainstream. In this case, as in Bolton's, their is a big risk in supporting a loony as once they are in office who knows what they will do and how bad they will make their supporters look.

Posted by: Jack | May 24, 2005 4:06:13 AM

I doesn't strike me as convincing evidence of a good deal that the wingnut crowd is angry. Angry is their way of life. Anything less than total rollover by the Democrats (and perhaps even that) is still good enough for them to keep their base motivated.
Then again, in the abstract there is something to be said in favour of getting an up or down vote on the wignuts from the electorate first, before entering the decisive battle. So any push-back towards 2006 is a good thing.

Posted by: markus | May 24, 2005 4:28:02 AM

It's just a temporary delay, the fight is on again the moment Democrats filibuster a nominee. And I expect that won't take long.

Posted by: Brett Bellmore | May 24, 2005 5:36:30 AM

This is a terrible deal as I see it. Even if the Republicans hold up their end of the bargain, the Dems are letting through the three worst nominees. Why not block those three and let the others in?

That said, you've got to love Dobson's typically insane logic: "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." Given that all three got and won votes when there were no restrictions at all on the filibuster, this doesn't even get over the first hurdle of a logical argument.

Posted by: Ginger Yellow | May 24, 2005 5:48:47 AM

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