Don't Let Me Stop You

What the heck, you'll do what you want anyway.

Judicial Deal Not Too Bad?

Posted by Dan Draney on May 25, 2005

Perhaps we were a bit hasty in decrying the judicial filibuster “compromise” deal last night. James Taranto’s comments in Best of the Web Today are encouraging:

“The left is crowing and the right is carping, for the most part, about last night’s deal by 14 senators, seven from each party, to avoid the ‘nuclear option’–a Senate vote to abolish filibusters of judicial nominees. We beg to differ. We favor an end to the obstruction of judicial nominees via filibuster, and it strikes us that this agreement is likely to accomplish that, at least for this Congress (after which the agreement expires). If so, the nuclear option will have shown its value as a deterrent.

The agreement binds the 14 senators who signed it to vote for cloture (i.e., against a filibuster) of the three remaining nominees the Democrats have most demonized: Priscilla Owen, Janice Rogers Brown and Bill Pryor. The compromisers expressly ‘make no commitment to vote for or against cloture’ of two additional nominees, William Myers and Henry Saad. The status of two other nominees, Brett Kavanaugh and William Haynes, is unclear. Early this afternoon the Senate voted 81-18 for cloture on Owen’s nomination; an actual confirmation vote should come by tomorrow.”

The DNC is casting it as a pure loss for Frist and conservatives. Other comments at NRO and Confirm Them suggest some reasons for optimism (e.g. The New Republic hates it). Ryne McClaren reviews some other comments as well. Bench Memos on National Review Online:

L. Graham
[Kathryn Jean Lopez 05/24 04:54 PM]
Jon Adler just called — heard L. Graham on a radio show say that renominating Estrada would not constitute an ‘extraordinary circumstance.’ Also, Graham (a.ka. MIT) still believes he still retains the right to invoke the nuclear option on one of the seven if Dems filibuster and its not an ‘extraordinary circumstance.’

No Deference
[Edward Whelan 05/24 04:32 PM]
Some folks appear to be of the view that Republican signatories are obligated to accept the legitimacy of any determination by a Democrat signatory that ‘extraordinary circumstances’ exist. I have no intention of defending the anti-cloture reform agreement, but I believe that it says exactly the opposite. The provision that states that ‘each signatory must use his or her own discretion and judgment in determining whether such circumstances exist’ means that a Republican signatory is fully entitled to determine that ‘extraordinary circumstances’ do not exist and that a Democrat signatory’s contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory’s determination of ‘extraordinary circumstances.'”

If we “do the math” on future judicial filibusters, we see:

  • 55 Republicans for cloture
  • 7 Democrats on record as supporting filibusters only for “extraordinary circumstances”

If 5 of the 7 take a reasonable view of the meaning of “extraordinary circumstances,” there will be 60 votes for cloture. The 7 Republicans in the group have put themselves on the line to hold this together, and will have justification to vote for a rule change should “extraordinary circumstances” turn out to be NARAL’s definition. Presumably the “gang of 14” have had fairly extensive discussions about what would and would not constitute “extraordinary circumstances,” even if they aren’t sharing it with the rest of the world.

As much as we would like to see Harry Reid, Chuck Schumer, and Barbara Boxer have their noses rubbed in it, diffusing the situation instead (if it holds) could be A Good Thing.

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