The No-Nuke Deal

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?

Frist and the Republican right had aimed to eliminate the judicial filibuster, and they did fail in that mission. But they succeeded in dramatically weakening the filibuster--possibly to the point of rendering it inoperable. Social conservative leader James Dobson decried the compromise as a loss for the Republicans. But undermining the filibuster is certainly more of a gain than a defeat for the GOP.

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Don't forget about DAVID CORN's BLOG at www.davidcorn.com. Read recent postings on how Corn was spoofed on Saturday Night Live and how Laura Bush backed him up on a key criticism of the White House.

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Did the Democrats get screwed--or screw themselves? This might have been the best deal they could have achieved. The Republicans were in the position of strength, and the betting in Washington was that Frist had enough votes to launch the nuclear option. There was no telling which party would have won the post-nuclear contest to blame the other side. What might have happened if Frist had dropped bomb and the Democrats subsequently hung together as a party and made good on their threat by slowing down the Senate, forcing the Republicans to vote on such Democratic initiatives as the minimum wage increase and health care tax cuts, and depicting the Republicans as a power-hungry majority (while the Republicans accused them of being obstructionists)? No one knows. And now no one will.

Looking back, it seems as if the debate over these judicial nominees became too much a fight about Senate rules. The Democrats benefited when Senator Trent Lott stupidly coined the phrase "nuclear option." But the back-and-forth about the filibuster and parliamentary matters (as important as they are) practically subsumed the central point: that Bush has been engaged in judicial activism--that is packing the federal courts with rightwing judges who usually side with big corporations over individuals. In spite of Lott's boneheaded mistake, the Republicans were able to define this war as one mostly over the use (or, as they put it, the misuse) of Senate rules. The Democrats fired back by claiming the Republicans were abusing their majority standing and unfairly rigging the game. This is what political consultants call a "process issue," and the conventional rule in politics is that "process issues" rarely resonate with large blocs of voters beyond those base-voters already engaged by such things. And with this arrangement, the Democratic moderates--let's name them: Ben Nelson, Robert Byrd, Joseph Lieberman, Mark Pryor, Mary Landrieu, Ken Salazar, and Daniel Inouye--did elevate the rules issue (and the goal of preserving the stately ways of the Senate) above the desire to do everything possible to block Bush's takeover of the courts. This deal was more about the Senate than the judiciary.

In the end, the bare-knuckle brawlers of each party who justifiably wanted a fight over Bush judges were sent back to their corners by the mushy-middlers. But this is a fight the Democrats need to pursue. The rules of the Senate matter, but what matters as much, if not more, are the far-reaching decisions handed down by judges who would restrict the rights of individuals and bolster those of corporate interests. This deal has yielded an uneasy peace--one arguably more beneficial at this moment to the Republicans than to the Democrats--but it does not the resolve the fundamental conflict. The judicial wars will (and should) continue by other means.

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Comments (34)

1. Excellent analysis of the "compromise". I think the democrats would have been better off focusing on the judges themselves, starting with Owens who has taken money from corporations with litigation pending before her amongst numerous offenses. By focusing on that, they would have given themselves an issue for 2006, even had they lost the nuclear vote. As it stands now, the Democrats have no issue they can use in the next election, and no guarantee that they will be able to block a Supreme Court nod.

   Posted by kasper11 at 05/24/2005 @ 2:38pm

2. A wise comment from Kasper11. Thank you.

   Posted by David Corn at 05/24/2005 @ 3:11pm

3. I agree the dems lost a chance to use this issue to pick up some seats from Republicans senators elected in moderate/blue states. (See Maine)

   Posted by kucharski at 05/24/2005 @ 3:46pm

4. I agree that the "compromise" is much more of a defeat than a victory. For a moment, I thought the dems would simply agree that they would not use the fillibuster in exchange for the repubs agreement not to abolish it -- thereby preserving the fillibuster for later use by the repubs in the event that the dems ever regain control of the senate. However, I don't read the agreement as requiring the 7 republicans consent as to what constitutes "extraordinary." It does not--though the practical result may well be this: Deomcrats attempt to fillibuster a Supreme Court nominee, claiming circumstances are "extarodinary." Some (or all) of the 7 republicans claim this has breached the agreement, and the nuclear option is then exercised to block the fillibuster. So, no matter how you slice it, is hard to characterize this as a win for the Democrats--what could have started things rolling is to fillibuster Owens (she is a DISASTER) and, assuming the nuclear option passed, shut down the Senate. Then, with the whole Senate (rightfully) discredited, the Democrats would at least stand a CHANCE of rising from the ashes in '06 . . .

   Posted by AndruV at 05/24/2005 @ 5:05pm

5. Excellent ANDRUV. I simply don't see the "victory" being touted by moveon.org and a host of other liberal groups. I fear it's safe to say that 3 judges in hand are worth far more than 1 filibuster that might someday be dragged out of a bush.

   Posted by harper64 at 05/24/2005 @ 5:22pm

6. I agree with Andruv as to his reading that the concurrence of the 7 Republican Senators is not required to define "extraordinary" circumstances.

   I also agree that this was more about Senate rules than it was about the proposed judges. I disagree (with his view)that this was inappropriate. The rules had been set up in protection of the minority viwepoint and this is a critically important issue.

   The Democrats lost because they could have won. It is entirely possible (likely, even) that the 7 Republicans had a more accurate headcount on pro-Nuclear votes than did Frist. I don't think the Republicans would have compromised at all if they had believed they had the necessary votes. I agree with what I think Mr. Corn believes, namely that it would be better for the country, long-term, if they had duked it out on the Senate floor and let the chips fall where they might have.

   Wes Cain

   Posted by wescain at 05/24/2005 @ 5:26pm

7. The Democrats must like omelets; they fold so much.

   Posted by Bama Pro at 05/24/2005 @ 5:38pm

8. Good analysis. The Dems gave a lot and got - what? Nothing guaranteed. Like usual, a bad deal. Now we are stuck with three horrible judges.

   Posted by Robert Pierce at 05/24/2005 @ 5:42pm

9. ouch! I sense some people here may be even angrier than I am. My earlier great disappointment in this 'campaign' was the scarcity of reporting on (1) how the Republicans (via Hatch) have changed rules over the last 10 years, viz the 'blue slip' (others?) and (2) a comparison of Bush's nominees to say, Clinton's. There should be no compromising with these 'bestids'; they will abuse their power at every opportunity.

   Posted by norbal2 at 05/24/2005 @ 6:12pm

10. What happens to ordinary people when these three or someone just like them gets to the Supreme Court?Progressives hopefully will get statements made by these judges,conservative or whatever,intothe news media everyday Posted by RDugbank 5/24/05 6:30 PM

    Posted by rebecca reda at 05/24/2005 @ 6:35pm

11. First's response to the "compromise" tells you where he and his ideological kin will soon force the Senate - right back to the nuclear option. The compromise, he said, "if followed in good faith, will make filibusters of judicial nominees in the future, including Supreme Court nominees, almost impossible."

    Posted by Robert Pierce at 05/24/2005 @ 6:36pm

12. Sorry, freaking Frist not First.

    Posted by Robert Pierce at 05/24/2005 @ 6:40pm

13. Sorry, freaking Frist not First.

    Posted by Robert Pierce at 05/24/2005 @ 6:42pm

14. I think part of the deal was that the wingnuts would wail defeat to help the traitor Democrats save face.

    Posted by reidsucks at 05/24/2005 @ 7:23pm

15. The Democratic "backbone" is a myth. No matter how hard I "wish" it just doen't exist...Fran in Va.

    Posted by frances roe at 05/24/2005 @ 7:47pm

16. I find it curious that Washington pundits, who are notoriously focused on partisan gamesmanship at the expense of substantive policy discussion, have so far dropped the ball on this story, which is all about gamesmanship. Perhaps they are confused by the fact that the outcome can't be counted simply as a partisan victory for either side. I think what happened was a coup by the bi-partisan moderate coalition who seized power from the leadership on both sides. They now hold the balance of power, & it is they who will now decide whether in the future the filibuster will be used, & under what circumstances. And because they have broken the strict partisan discipline that had been enforced on both sides, they have reclaimed power not only for themselves but for for all senators to "vote their consciences" on confirmation floor votes. Everyone seems to assume that the outcome of the floor votes on these three nominees is a foregone conclusion. It was before, but not now. The game has changed. As for Dem. vs. Repub., I think the Dems. have been saved from a disaster.

    Posted by shelgr3 at 05/24/2005 @ 8:47pm

17. Interesting take from Shelgr, but that's only true if you believe that the Republicans who were part of the compromise are willing to take on the rest of their party and the Republican "faithful" - do you believe that the conscience of moderate Republicans (that I have been losing faith in) has actually come forth? I truly hope you are right! Otherwise the Dems have just caved again in their attempt to make nice, and the Republicans have had their way again.

    Posted by Turk33 at 05/24/2005 @ 9:26pm

18. Only under Extraordinary Circumstances? This sounds like something my mother used to said to me. I'm curious to know how the Democrats interpreted this so-called "compromise" in a way which they were satisfied by it, because it seems as though Republicans walked away from this showdown with a grin on their faces as if they've gotten away with murder. Again, why would the Republican half of the "Gang of 14" (which sounds like Clint Eastwood's next film to me) even exercise their power to start the process of opening a filibuster against their own party? Though this compromise may and most likely will benefit Democrats in the future, the Republicans definitely got the higher ground on this issue today and now have the edge over the voting on many of these conservative, pro-business judges. It was the great Henry Clay that once said, "A good compromise is when both parties are dissatisfied." In the case of the filibuster battle, though, I don't see any dissatisfaction coming from the Republicans...

    Posted by Trevcal123 at 05/24/2005 @ 9:58pm

19. Good coments. Thank you. Another point to consider: the power to decide what judges ought to be blocked has shifted within the Democratic caucus from the members of the judiciary committee to the seven Democrats in the Gang of 14. Traditionally, senators follow the lead of committee members who (theoretically) have studied the issue at hand and in the case of judicial nominees are most familiar with their records. Concerning the Terrible Three, all the Democrats on the judicairy committee voted against each of these nominees. Yet the No-Nuke Seven have trumped their opposition and established a system under which they--not the committee members--will call the shots on judicial nominees. Senator Pat Leahy, the ranking Dem on the judiciary committee, and its other Democratic members ought to be seeing red.

    Posted by David Corn at 05/24/2005 @ 11:06pm

20. How will the Democratic Party ever gain the respect of the citizenry when its leaders repeatedly compromise or take cover on issues of strong principle? When the Terry Schiavo circus came to Congress, there was nary a Democrat to be found who would speak against the theocratic assault on liberty. Now on the judicial filibuster issue, we find the same bunch of weaklings bending over backwards to avoid real confrontation with the same bunch of right wing radicals. It is hard to avoid the feeling that the Democratic Party leadership is too fat and comfortable to serve as a meaningful opposition to the Republican juggernaut. Perhaps they are still taking their cues from Tom Dashcle.

    Posted by robgo2 at 05/24/2005 @ 11:44pm

21. David Corn wrote: "...the power to decide what judges ought to be blocked has shifted within the Democratic caucus from the members of the judiciary committee to the seven Democrats in the Gang of 14."

    That was exactly my point. Power has shifted within both parties. I think the Gang of 14 have also created a space both within & between the parties for deliberation & compromise (those quaint practices which used to be the hallmarks of the Senate), & from now on I think there will be deliberation & perhaps even consultation by the White House (!!!), unless the bi-partisan coalition breaks down.

    Posted by shelgr3 at 05/24/2005 @ 11:54pm

22. Shelgr: I disagree. Owens will now sail through . . . And she is "extraordinarily" bad. Even Alberto Gonzalez called her an "unconscionable activist"--for corporations and the anti-science anti choice anti consumer anti individual rights crowd. The fact that allowing her nomincation to sail through -- and an irresponsible corporate shill will wreak havoc on real people's lives for decades -- is indeed extraordinary. There is nothing noble in the spineless actions of "moderate" democrats who will do anything to keep their seat and will stand up for no one.

    Posted by AndruV at 05/25/2005 @ 1:11pm

23. So, if the "nuclear option" is triggered, maybe 3 Nazis are seated on the Federal bench. If the Democrats agree not to oppose the candidates, 3 Nazis are seated on the Federal bench. And this is a victory for the left? I hope we aren't subjected to more such "victories." The Dems, and the rest of this country, would have been far better off fighting to the last man. There may have been enough moderate GOPers to help defeat one or more of the three. The fact is, the Republicans want a fight. They are happiest when they have demonized and bloodied their opposition. They have no interst in compromise, comity, or cooperation, notwithstanding the BS I heard too much about from the gang of 14 after the deal. Listen to Dobson. The opposition folded, and his side got everything it could want, yet he still complains about it giving away too much. The Dems should have taken (and should take from this time forward) the fight right to the Republicans. Polls showed that a majority of Americans did not support Frist and his ilk on this issue. It would have further energized the left and maybe helped the Dems to grow some cojones. The Dems lost the issue, lost the fight, and lost even more respect.

    Posted by Marysboy at 05/25/2005 @ 1:41pm

24. This was not a win for the Democratic Party. If the Republicans had the votes they needed, they would have used the "nuclear option." The Democrats should have let them. They should have been shouting from the rooftops that these extremist nominees already had an up or down vote.

    The fact that the Republicans could not muster 60 votes to confirm what they espouse are excellent candidates is testimony as to how weak and extreme they are as candidates that would hold a lifetime position.

    Get a spine!

    Posted by tessd at 05/25/2005 @ 5:45pm

25. Actually, a "nuclear option" is not needed at all. If the Republicans really wanted to defeat the notion of filibustering a nominee they simply could have forced the Democrats to talk until they got tried of talking and then voted. A true filibuster requires the group seeking to stop a vote to hold control of the floor. This only happens as long as they are willing to talk, and the Republicans are willing to watch them do it. Once the Democrats stop talking, then an up or down vote takes place. Nothing complicated about it. The only reason to change the rules is that the Republicans are too lazy to listen to Democrats talk.

    Posted by githensr at 05/25/2005 @ 8:07pm

26. I thought the NY Times editorial made a fantastic point today that I have never seen made before. They pointed out that notion of democratic majority has never applied to the Senate and the 40 senators opposing the nominations actually represent more people than the 60 supporting. (I haven't done the math but I trust this is true.)

    Excellent and very important observation.

    Posted by Furstenberg at 05/25/2005 @ 8:08pm

27. Hey Marysboy, if calling your political opponents "Nazis" is demonizing them, then you certainly fit the profile.

    Posted by githensr at 05/25/2005 @ 8:10pm

28. Er, sorry, I should have said 45-55 in that last post. Clearly math is not my strong suit.

    Posted by Furstenberg at 05/25/2005 @ 8:13pm

29. The notion of a democratic majority in the Senate is indeed in the Constitution. If not, then the Vice-President would not be President of the Senate and would not be required to vote in cases of ties.

    Posted by githensr at 05/25/2005 @ 8:23pm

30. Neither side has clean hands;however, mandates are not necessary for the President of either party to submit nominees. I would prefer to disagree with policy or judicial decisions without the labeling. It is impossible to hold a discussion of ideas with the idea of convincing someone to change their position when they are being belittled. The one effect from this deal is now the other side (whoever that may be in the future) will dig harder and scream louder about any nominee submitted. All in an every increasing effort to paint the nominee as an unacceptable and that "Extraordinary Circumstances" exist. This fight is far from over, and will only end when one side clearly wins and the other clearly loses.

    Posted by githensr at 05/25/2005 @ 9:42pm

31. Zero, your hostility is very apparent and in your opinion, may be justified. However, elections matter. The Republicans, although disagreeing with the nominee, approved President Clinton's choices to the Supreme Court when they easily could have made an "extraordinary" argument. The Republicans were guilty as hell of stonewalling nominees without even holding a hearing. My point is disagree with the policy, with thier personal beliefs, with the color of the car they drive, but do not hurl insults and castigate their lives, family, ect. It only makes you look small and galvanizes their positions and opinions. One day, Bush will leave office, the Democrats may win an election and/or take control of the House, the Senate or both. We've had worst Presidents and survived and this to will pass.

    Posted by githensr at 05/26/2005 @ 10:14am

32. I'm sorry, Zero is right to be mad as hell, and the "hostility" (not to put words Zero's mouth) seems to be a reaction to the hostile takeover of the three branches of government by the fundamentalists of the Republican party. Githensr's suggestion sounds like the Democrats should just bury their heads in the sand until all this just blows over. Wait a minute, that's already happening. And how's that going so far? The problem is that not enough bright people of conscience are getting mad, at least not mad enough to show the servants of the people (ie., government) that we like our democracy and we want to keep it a few more years, thank you very much. The hypocrisy, the lies, the cloak-and-dagger techniques, and the trampling of democracy should be creating a mini revolution, but instead we get "compromises" that only benefit one side. I think it's time for the Democrats who just want to play nice to find another line of work. The more they accept the Republican framework, the less likely it is thatthey will ever succeed.

    Posted by Turk33 at 05/26/2005 @ 12:36pm

33. I think if all the writers would send their comments to those who truly matter (like say Howard Dean, Hillary, Reid, Anne Lewis, Barbara Boxer, Pelosi, etc), then maybe someone would evenually sit up and take note that there's just a mite bit of anger going on here. DO NOT send to Republican Senators - that gets zilch. You guys are great thinkers and put pen to paper with lots of political savvy. Someone get the ball rolling, inundate them. There is justice somewhere. Godspeed, PEACE!!! jbs

    Posted by tstowe at 05/26/2005 @ 4:28pm

34. Good point, send mail to the Democrats. The Democratic party leadership expects every Democrat to write to every single Democrat leader about every single issue every single day, otherwise they cant tell right from wrong.

    Posted by reidsucks at 05/26/2005 @ 5:41pm