May 24, 2005
OK, one more rant on yesterday’s compromise, then I’ll shut up. I didn’t feel good about the deal last night, and I still don’t. It’s not simply that extremists like Owen and Rogers Brown get their free pass; it’s more that the Democrats now have to meet the “extraordinary circumstances” bar whenever they want to invoke a filibuster that was previously their constitutional right. And because nobody knows what “extraordinary circumstances” look like, you can bet it will be the Dems who get painted as extremists when they do try to use the filibuster against future nominees. As Josh Marshall puts it:
[T]he main issue isn’t resolved so much as it’s delayed. The moderate Republicans agree to preserve the filibuster so long as the Democrats use it in what the moderate Republicans deem a reasonable fashion. And yet the use of the filibuster, by its very nature, almost always seems unreasonable to those whom it is used against.
All of which means that the minute Bush nominates his next hard-liner, the compromise will likely fall apart and it will be déjà vu all over again. While many Democrats apparently view yesterday as a victory, the Republicans know it’s just a temporary setback. I think Jonathan Weiler has it right:
[W]hat the Democrats really did was to save Bill Frist and the rabid right from their own bad judgment in this whole process. As Grieve writes, “Susan Collins and other senators involved in the deal suggested Monday night that it was never really in doubt -- that too many senators were too afraid of what the nuclear option would bring. Democrats were afraid it would destroy the Senate’s tradition as a “cooling saucer,” the place where debate outruns passions and minority views can moderate majority desires. Republicans feared that they might someday live to reap what they sowed, and that in the meantime Democrats could make their lives difficult by using Senate rules to slow legislation in the Senate to an agonizingly difficult pace.”
In other words, prior to the compromise, the Republicans had boxed themselves into a corner. The Democrats bailed them out.
This supposed defeat for Frist leaves three of Bush’s most controversial nominees in position to get floor votes, leaves Democrats acknowledging that filibustering of judicial nominees requires something much greater than the fact that it’s their very constitutional right to do so, and creates a standard, “extraordinary circumstances” that will likely prove indefinable and unenforceable. There was a real prospect of achieving political victory in this fight. Once again, the Democrats blew it. Once again, the Democrats sacrificed principle (their unqualified right to filibuster when they felt it warranted) for a tactical “victory” of no apparent lasting significance and gave the Republicans “moderate” cover for their ongoing transformation of the federal bench.
Still, at least the theocrats are getting a taste of reality, however brief.
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