Tuesday, May 24, 2005


[I originally posted this at 8:19 pm on May 23 but bumped to add details and links]

Now it's time for him to resign his leadership post. If you cannot lead, you cannot be the Senate Majority Leader.

Here's what happened: on the eve of a floor vote to invoke cloture and break the Democrats' filibuster, using the unanimously well-qualified Priscilla Owen as the nomination to break the wall of obstinance, the "moderates" in the Senate reached an accord. The text of the accord is at the link above. Here is what happens:

First, Owen, William Pryor and Janice Rogers Brown will have cloture invoked and obtain the floor vote they've been denied for entirely too long.

Second, the signatories make no commitment on how they will vote re: cloture of William Myers or Henry Saad. In other words, the Republicans gave those two up despite the fact that BOTH would be confirmed in an up-or-down vote.

As for future nominations, Democrats retain the "right" to filibuster in extraordinary circumstances as defined by each individual Senator's own conscience and good faith: in other words, the same conscience and "good faith" Chuck Schumer will claim he's used all along because the President's nominees are allegedly so far outside of the mainstream. More simply: the Democrats give up nothing.

The Republicans however agree not to use the constitutional option to reaffirm the President's supremacy in nominating and obtaining advice and consent (an actual vote) on his nominees during the 109th Congress. In other words, the Republicans capitulated.

And even worse, the 14 signatories and seven Republican signatories (including McCain, DeWine, John Warner, Chafee, Collins, and two other Repubs [can't read the signatures -- upon further inquiry = Snowe and Graham]) have now basically told the President to not bother with a nominee who won't meet the DEMOCRATS' approval. They did this in the second page of the agreement. That means that the 45 Senators in the Democratic caucus (including Jeffords) have a veto over the re-elected President of the United States.

Frist should resign and the President should be furious.

UPDATES: In a contrarian mode, John Podhoretz calls this a victory for the Republicans because it "breaks the Senate logjam on circuit court nominees." True for three of them, not for four others currently filibustered and for the near-dozen who withdrew after the Dems began the filibuster. JPod also says that:
This deal is therefore effectively about the judges it mentions -- and about them only. Every future nomination will be decided as follows. If the Democrats insist that the next nominee(s) are bad enough to invoke the "extraordinary" right to filibuster, the Republicans have the right to say the Democrats are full of it, kill the deal and go to the nuclear option immediately.

Thus, the agreement is only binding to the extent that Democrats do not filibuster -- since it will be very difficult for the Senate Republicans to allow them to get away with the "extraordinary" right claim about a mainstream conservative nominee.

All of this is true, but it ignores a reality: NOT ONE of the filibusters was justifiable on the merits, therefore they were all "extraordinary circumstances" in the parlance of the Democrats and would be once again if the Dems refuse to invoke cloture. In addition, after 2.5 years of allowing themselves to be held hostage to the extremist lobbyists who are pulling the Dems' marionette strings, there is no real hope that the Republicans will get a spine implant in the future.

Additional commentary. First, the Captain:
[W]elcome to Versailles. The centrists who made their play for power last night have constructed an elaborately meaningless document that holds no one truly accountable for their actions and only applies to five of the controversial nominees, splitting them 3-2 for the Administration. It may sound Solomon-like, but in the end the nuclear option will return to the table as soon as the Democrats filibuster anyone outside of Saad and Myers. . .

In the meantime, the GOP centrists [ ] explicitly endorsed the use of the filibuster in dealing with interbranch transactions, against the model of equality among the branches, while the Democrat centrists have betrayed the notion that ideology had nothing to do with their obstructionism.

Professor Bainbridge disagrees, noting that preeminent conservative Russell Kirk would caution against pressing forward for immediate gain, Bainbridge states:
The filibuster is a profoundly conservative tool. It slows change by allowing a resolute minority to delay - to stand athwart history shouting stop. It ensures that change is driven not "merely by temporary advantage or popularity" but by a substantial majority. Is it any wonder that it has usually been liberals who want to change or abolish the filibuster rule?

Proponents of the "nuclear option" claim to believe that abolishing the filibuster could be limited to judicial nominations. It's a coin flip as to whether this is naive or disingenuous. It's a slippery slope to abolishing the filibuster as to Presidential nominations or even legislation.

This argument ignores the constitutional rights and prerogatives of the President in favor of a procedural tool that was designed to slow the pace of legislation. Conservatives are "champions of custom, convention, and continuity because they prefer the devil they know to the devil they don’t know" according to Kirk. Custom, convention and continuity militates in favor of our 214-year long history of no-filibuster-of-executive-nominees that existed from 1789-2003.

Bainbridge has a bunch of links to other conservatives' reactions. See also Bench Memos

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