A Good Agreement? In What World?

Okay, folks. The deal is done. The filibuster lives.

Some folks are thinking that’s a good thing.

I just don’t see it.

I’ve read the agreement a few times and here’s the way it looks to me.

1) The Democrats still retain the ability to filibuster any judge they want, except for three. Problem is, they would not have won on those three in any event. They didn’t give away a thing and kept the filibuster on nominees.

Professor Bainbridge says that’s a good thing for a couple reasons. First, there’s the slippery slope argument.

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. Would the GOP be tempted to abolish the filibuster if necessary to put John Bolton at the UN? Or to ram through social security reform? Even if the GOP resisted that temptation, what happens the next time the Democrats control the Senate? A GOP-established legislative and institutional precedent for abolishing the filibuster as to judicial nominations would make it all that much easier for the Democrats to do the same as to nominations or legislation. (Imagine President Hillary with a 50-50 Senate split and, say, Mark Warner as VP. What will prevent HillaryCare II if we don’t have the filibuster then? Our slim majority in the House?)

Maybe that slope isn’t quite as slippery at the Professor says it is. Both parties have had the use of the filibuster for a very long time – decades upon decades. It was never used for judicial nominees until 2002. Isn’t it equally as possible that a controversial and long considered rule change like the Byrd option would not be duplicated elsewhere for just as many decades? Yes, changing the Senate rules is a slope, but it’s not necessarily a slippery one. Senate rules, especially rules as important as the Byrd option, do not change often, nor do they change easily. I can’t see that slope as any more slippery than the slope that led to the 2002 filibusters.

Bainbridge’s second point is that the Republicans might want to retain the nominee filibuster for their own use.

Even if this precedent could be limited to judicial nominations, what happens if President Hillary (with a 50-50 Senate split) nominates somebody like Larry Tribe or, worse yet, Margaret Marshall to the Supreme Court? Wouldn’t it be handy to still have the filibuster around then?

No, it wouldn’t be handy – not at all. Does anyone think that the Republicans could ever use the filibuster in that way after calling it a direct violation of the Constitution and an affort to the intentions of the Founders? How hypocritical would they appear if they decided that a Democrat dirty trick they excoriated in such harsh terms today would be a perfectly acceptable for them to use in four years? Bill Frist, assuming he’s still the Majority Leader when that time comes, might be occasionally foolish but he’s not going to hand the Democrats that big a weapon.

Then again, given what I saw yesterday, maybe he will.

Beth at MVRWC had a similar question:

Will someone please explain to me why it’s a BAD thing, when the three nominees the Democrats were shrieking about so much will get a vote now?

Because they were going to get a vote before. Because Senator Frist really did have the votes necessary to invoke the Byrd Option. Because, regardless of what she says later, getting the nominees is not the most important thing, especially if you have to sacrifice two that you could have gotten also. It’s far more important how you get them.

It was important that Republicans stand for the Constitution – for the proper place for the Senate and the Executive Branches in the judicial nomination process. What this agreement has done is to conflate the Senate to equal the Presidency which is no where near what the Founders intended or the Constitution allows. In fact, the agreement (PDF is here) demands that the President fully consult with the opposition party before he nominates anyone for a judgeship.

We believe that under Article II, Section 2 the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a nomination to the Senate for consideration.

That galls me. More than that, it means that, essentially, fourteen Senators have decided that they, more than any Senator or President who has ever lived, know best what the Constitution means.

Fourteen Senators now control what for over 200 years the President controlled. Does that sound right to you?

2) The agreement lets the Democrats portray the filibuster as a thing that “saves the Republic” and puts a halt on the Bush administration taking “absolute power” of the government.

This sticks a bit of a hole in John Podhoretz’ argument today that the agreement was a good thing. He says, in part:

And it means that if Republicans have to break the filibuster to ensure an up-or-down vote on a Supreme Court justice, they will have a very strong argument indeed. The argument will be that they are breaking the filibuster out of respect for the tradition that says the choices for the highest court must be advised and consented to by the full Senate.

Sure, they’ll have that argument. They’ll also have to make that argument with seven fewer Senators than they would otherwise. Remember that seven Republican Senators stood and smiled while the likes of Harry Reid and Robert Byrd beamed about how our Republic was saved because the filibuster remained. Podhoretz’ argument is exactly the same argument they could have – and largely did – used in this debate. They caved in pretty cravenly. Is there any reason to believe that they’ll bring that argument up again and stick to it in the case of a Supreme Court nominee when they couldn’t do it for lower court judges? If they do, they’ll have to explain why, if that’s the tradition, it’s not the tradition for every other court nominee that passes before them. They’re going to have to explain why the goalposts shift only in the case of a Supreme Court nominee.

There’s no chance that argument gets off the ground. I’m sure they’d try it, but they won’t get far – not after yesterday.

3) The Republicans demonstrated that any minority can, by digging in its heels, completely work its will on the Senate on any issue it chooses. I dearly hope the Libertarian party is listening because the Democrats just showed how a small bloc of Libertarian Senators could, by threatening a filibuster, strongarm the majority party into doing anything it wanted. Sure, it wouldn’t be Constitutional but, as we’ve heard, the work of the Senate trumps the Constitution. And, hey, if we’re going to trample the supreme law of the land, we might as well get some decent libertarian principles in place while we’re doing it. Contradictory? Yeah, but that’s politics! Right, Senator Graham? Right, Senator McCain?

4) The agreement lets the Democrats shift the definition of the word “extraordinary” to meet anything they want. The agreement lets the Democrats invoke the filibuster only in the case of “extraordinary circumstances” but, as many have pointed out, we don’t know what that means. Only Democrats know what that means.

Here’s my bet. You’ll see the filibuster used on nominees Saad and Myers. Harry Reid already guaranteed that would happen during his press conference yesterday. So that’s two. You’ll see the filibuster on any Supreme Court nominee in the next three years. How could they do that? Well, you certainly have to allow that a SC nomination is an “extraordinary circumstance” don’t you? That’s one, and probably two more. You’ll see a filibuster on at least one more court nominee – I’m not sure who quite yet – just to keep that muscle flexed. What would make that filibuster “extraordinary”? Hey, pick a reason.

I don’t trust the Democrats to keep their word on this agreement. In fact, as I showed yesterday, Harry Reid already broke it. Besides, we’re talking about Senators here who have no problem with comparing Republicans to Brownshirts and Nazis. Do you think they’re bound by the definition of the word “extraordinary”?

This is similar to the argument used by Alexander McClure of Polipundit:

First, Democrats are forced to let three of the President’s nominees come up for a vote. We will now see these filibustered nominees win confirmation with 55-59 votes. So much for the Democratic argument that
filibustered nominees are extremists.

Yes…well, maybe. But mostly maybe not.

Two of these nominees were elected to the judgeships they have right now with incredible majorities – greater majorities than they’re going to have in the Senate. Let’s remember something here. Judge Rogers-Brown was re-elected in California with over 70 percent of the vote. Same goes for Priscilla Owen, who won her last campaign in Texas with over 60 percent of the vote.

You’re telling me that it’s a more convincing argument if they’re confirmed in a Republican Senate with 59 percent of the vote? Really?

Really?

You’re kidding, right?

5) Senator Robert Byrd. Let me say that again.

Senator. Robert. Byrd.

The Republicans gave the man who once called them Nazis on the floor of the Senate, who filibustered civil rights for blacks, who accused the President of being mentally ill, who called half of the country “extremists” and fascists, a bright and shining moment as the Savior of America. They gave an unabashed former Grand Kleagle of the KKK the opportunity to stand in front of America and smile and preen and tell us how he’s “kept the Republic” for us. Our majority party in the Senate let a man whose rhetoric knows no bounds or reason and who wanted to keep blacks like Janice Rogers-Brown as second-class citizens forever bask in the spotlight.

That is inexcuseable. There ought to be limits about who we’ll cozy up to in order to get things done. Robert Byrd ought to be a pariah to the Republican party for the things he’s done and yet I saw his smiling rictus up there hugging and mugging with Senators who ought to know better.

No, folks. This deal wasn’t in any way good for the Republicans, or for America. Even five-dollar hookers get more for lying down than the Republicans got yesterday.

(Thanks to The Anchoress for all the good links, and for letting me knock some of the arguments in her post down)

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Category: Political Pontifications