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.
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.
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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