The Senate will not be nuked. As the doomsday clock ticked down, seven so-called moderates from each party concocted a deal that was more of a win for the Republicans than the Democrats.
Under this brokered arrangement, three of Bush’s right-wing nominees for appellate courts–Priscilla Owen, Janice Rogers Brown and William Pryor Jr.–will not be filibustered. In return–so to speak–the filibuster will remain a weapon the Democrats can use in the future against other judicial nominees but only “under extraordinary circumstances.” What qualifies as “extraordinary circumstances”? That was not defined.
What does all this mean? At issue were five judicial nominees. The Republicans ended up with concrete gains: three conservatives (including one–Rogers Brown–who has declared that government is the enemy of civilization) will presumably be confirmed. What happens to the others–Henry Saad and William Myers–is uncertain. Saad’s nomination is already in trouble (perhaps because of allegations within his FBI file). Myers could be a candidate for a filibuster. But the Democrats did not walk out of the room with a hard-and-fast right to resort to a filibuster. With this compromise, they are only able to wield a judicial filibuster if seven Republican senators agree the situation is “extraordinary.” In essence, a small band of moderate GOPers will now have veto power over the Democrats’ use of the judicial filibuster.
Democrats and their allies in the judicial wars can point to the fact that one or two of the Bush nominees may be stopped and that the filibuster might be available in the future. But what they got out of this deal is more iffy than what the Republicans pocketed. True, they prevented Senate majority leader Bill Frist from pushing the button. But Ralph Neas, the head of People for the American Way, is overstating the case when he says, “This is a major defeat for the radical right.” What has the radical right lost in concrete terms? One or two conservative judges.
The future of the judicial filibuster remains unclear. Some opponents of Bush’s nominees are suggesting the filibuster has been saved for the coming titanic battles over Supreme Court vacancies. “Our members fought hard to preserve the filibuster, which will now live to see another day,” says Eli Pariser of MoveOn PAC. “The only way the ‘nuclear option’ comes back is if the Republicans break their agreement.” Yes and no. If George W. Bush were to nominate, say, Priscilla Owen to the Supreme Court, would the GOP half of the Gang of 14 buck the leader of their party and attest that such an action was “extraordinary” and open to a filibuster? After all, how “extraordinary” would it be for a president to nominate to the highest court a jurist who served on both a state Supreme Court and a federal appellate court and who was previously confirmed by a majority of the Senate?