The 'Filibuster Agreement' Is NOW Explained

[Annie]

I was against the idea of changing the rules, for the simple reason I think that the Republicans will be the minority again, sooner or later. I do not think that the 'right to filabuster is a matter of 'constitutional import,' but is a protection for a cooling off and an opportunity for the minority to gain time to further argue their position.

With that said, this 'compromise' explains why the GOP leadership is leaving many shaking their heads in wonder. First they say the deal is on 3 out of 6, when there were at least 10 nominees that were being held up, though perhaps it was only 6 by filabuster? Now we have the Democrats using their house organ, the NYT's explaining just what the agreement was:

http://www.nytimes.com/2005/05/25/politics/25supremes.html?th&emc=th

...Republicans and their allies said the agreement made it much harder for Democrats to filibuster a Supreme Court nominee - particularly on the basis of the candidate's judicial philosophy. After all, they argued, the accord explicitly cleared three appellate court nominees - all established conservatives - for floor votes.

Democrats disagreed. "There's nothing in anything that was done last night that prevents us from filibustering somebody that's extreme, whether it's on the district court, on a circuit court or the Supreme Court," said Senator Harry Reid of Nevada, the Democratic leader.

Leading Democrats and their allies were highlighting another part of the agreement: what they asserted was a clear signal to President Bush that he needed to engage in "true consultation and cooperation" with both parties before naming future court nominees, particularly to the Supreme Court.

"This agreement is a shot across the bow toward the president," said Senator Charles E. Schumer, Democrat of New York. "Don't pick someone too extreme or you'll run into trouble."

Administration officials and their allies pushed back, saying the agreement would have no effect on their powers to pick a nominee. Scott McClellan, the White House spokesman, said the administration would consult as it always had, signaling that it did not intend to change in any substantive way its method of selecting, vetting and nominating candidates for the federal bench, including the Supreme Court...

 

[Annie]

How the Right sees it:

http://www.opinionjournal.com/editorial/feature.html?id=110006734

Senate Charade
A remarkable exercise in political self-protection.

Wednesday, May 25, 2005 12:01 a.m.

Judging by all of the self-congratulation, you'd think the 14 Senators who reached a deal Monday on judicial nominations were the moral equivalent of the Founding Fathers. "We have kept the Republic," declared Democrat Robert Byrd, with all due modesty. "The Senate won" and "the country won," added Republican John McCain. All 14 are apparently destined for Mount Rushmore, as soon as Mr. Byrd can stuff the money for the sculpture into an appropriations bill.

What a charade. This ballyhooed "compromise" is all about saving the Senators themselves, not the Constitution. Its main point is to shield the group of 14 from the consequences of having to cast difficult, public votes in a filibuster showdown. Thus they split the baby on the most pressing nominees, giving three of them a vote while rejecting two others on what seem to be entirely arbitrary grounds, so Members of both parties can claim victory. Far better to cashier nominees as a bipartisan phalanx, rather than face up to their individual "advice and consent" responsibilities.

Meanwhile, the statesmen and women are able to postpone any real fighting over the filibuster until the inevitable Supreme Court nomination later this Congress. We don't often agree with North Dakota Democrat Byron Dorgan, but he had it about right when he called the deal "legislative castor oil. It averts the showdown vote tomorrow, but I doubt it's over." All in all, we can't recall a more cynical Senate performance since the phony impeachment trial of Bill Clinton.

And it's cynicism squared in the case of the three nominees who will now finally be confirmed. Yesterday, 81 Senators voted to give Priscilla Owen a vote on the floor, after four years of Democratic filibusters. Apparently she isn't such a grave "extremist" threat after all. The same also applies to Janice Rogers Brown (22 months in the dock) and Bill Pryor (25 months). Monday's deal exposes the long Democratic campaign against them as "extremists" as nothing more than a political sop to People for the American Way and their ilk.

Henry Saad and William Myers aren't so fortunate. They'll be denied a vote because the Republican Seven had to give their Democratic co-signers some trophies to take back to their Senate caucus. The text of the agreement is mum on other nominees, but AP quoted anonymous Democrats as saying that the nominations of both Brett Kavanaugh and William Haynes are also in jeopardy, again for purely arbitrary reasons. And don't forget the highly qualified choices--Miguel Estrada, Carolyn Kuhl, Claude Allen, Charles Pickering--who previously withdrew their names rather than keep their careers in suspended Senate nomination.

As for the future, the deal's impact hangs on the exquisite ambiguity of the phrase "extraordinary circumstances." The seven Democrats promise to filibuster only if a nomination reaches that threshold, which will of course be in the eye of every beholder. Taken at face value, and if the Democrats mean what they say, this should rule out a filibuster against anyone but a crook or incompetent. The political costs of opposing a Supreme Court nominee are also higher than for an appeals-court judge because the country is paying closer attention. Thus a filibuster will not be easy for Red State Democrats to support.

But there is a cynical irony here, too. To defeat a Supreme Court nominee, liberal interest groups will now be obliged to manufacture the very "extraordinary circumstances" that would give Democrats among the Gang of 14 an excuse to filibuster. Thus they will have even greater incentive than before to dig through a nominee's personal and professional life for any mud they can throw against him. In the name of consensus and comity, in short, these 14 "moderates" have increased the chances that the Senate will witness a future, bloody Borking.

The fervent hope of these 14 is that President Bush will spare them from such controversy by nominating someone acceptable to the left--say, another David Souter. Their agreement therefore warns Mr. Bush that he is obliged "to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration."

We hope he ignores them. Mr. Bush is under no obligation to reward Senators who have mistreated his nominees in this fashion. He owes far more to the supporters who helped him win re-election and his party pick up five Southern Senate seats last year. To vet his nominees with this Gang of 14 is a virtual guarantee of judicial mediocrity--of a lowest-common-denominator choice or a philosophic cipher.

Especially in the wake of this deal, our advice is the same as it was after Election Day last year. If Chief Justice William Rehnquist retires, promote Associate Justices Antonin Scalia or Clarence Thomas, and replace him with a distinguished conservative jurist such as Michael Luttig, Ted Olson, Michael McConnell, Sam Alito or for that matter Miguel Estrada. The President is granted the power to nominate judges under the Constitution because he is the only official elected by the entire nation. He shouldn't cede that authority to 14 Senators in desperate search of political cover.

 

[Annie]

Another take:

http://insider.washingtontimes.com/articles/normal.php?StoryID=20050525-121909-7158r

..."The terms 'extraordinary circumstances' do not lend themselves to any easy interpretation," Senate Judiciary Committee Chairman Arlen Specter said yesterday. "But when the Democratic leader observes that means 'occasional' and 'very infrequent,' that is very reassuring." Feeling reassured?

Within minutes of the deal's announcement Monday night, NARAL Pro-Choice America announced that "extraordinary circumstances" should include any nominees who don't state their positions on Roe v. Wade, the court case that made abortion a constitutional right. Other liberals have defined "extraordinary circumstances" as any vacancy on the Supreme Court.

Several conservative groups, including the Committee for Justice, came to quite a different conclusion because the deal includes unfettered confirmation votes for Justice Owen and two other conservative jurists -- California Supreme Court Justice Janice Rogers Brown and former Alabama Attorney General William H. Pryor.

"The fact that Senate Democrats are willing to allow cloture on Owen, Brown and Pryor indicates that conservative judicial philosophy cannot be considered the basis for a filibuster, or an 'extraordinary circumstance,' " said Sean Rushton, executive director of Committee for Justice.

Anyone looking yesterday for clarification from the signers and drafters of the Monday compromise didn't find it.

Asked what he meant by the phrase, Sen. John McCain, Arizona Republican, replied: "It's like child pornography, my friend. You know it when you see it."

Sen. Ken Salazar, Colorado Democrat, responded by saying, "I want judges to be fair, impartial and will uphold the law."

Asked whether Mr. Bush's nominees fail to meet those credentials, Mr. Salazar said: "Some of them do, but I'm not going to reach a decision without all of the facts."

Sen. Mike DeWine, Ohio Republican, said the group of 14 senators purposely "left it undefined."

Republicans defending the compromise pointed to Mr. DeWine's statement shortly after the deal was reached.

"If an individual senator believes in the future that a filibuster is taking place under something that's not extraordinary circumstances, we of course reserve the right to do what we could have done tomorrow which is to cast a 'yes' vote for the constitutional option," he said Monday night.

A Republican Senate leadership aide said that if Democratic signatories engage in a frivolous filibuster, then the Republican signers will happily support the "nuclear option," which would set a new precedent to ban judicial filibusters.

"Hell hath no fury like a Senate moderate scorned," the aide said. I am so sure the Democrats are shaking in their boots. Yeah, right.

However the deal will be carried out, it opened the way for yesterday's vote in favor of ending the debate on Justice Owen so that she could be granted a final up-or-down vote.

Yesterday's noon vote did not avoid all contention.

As the Senate clerk officially read the nomination under consideration, Sen. Carl Levin, Michigan Democrat who has been a key opponent of four of Mr. Bush's judicial nominees, arose and asked to make a "parliamentary inquiry."

Sen. John E. Sununu, New Hampshire Republican who was seated in the chair as the presiding officer, gave Mr. Levin the floor.

Wanting to establish that judicial filibusters are legitimate because 60 votes are required to invoke cloture or end debate, Mr. Levin asked how many votes are required for cloture "under the rules and precedence of the Senate."

Mr. Sununu, a first-term senator, ignored Mr. Levin's inquiry.

Ten seconds passed and still Mr. Sununu refused to answer Mr. Levin's question.

"Is there an answer to my parliamentary inquiry, Mr. President?" Mr. Levin asked again to no answer. After about a half-minute of ignoring Mr. Levin's request, the clerk began calling the roll for the vote on ending debate on Justice Owen's nomination. The final confirmation vote on her nomination is expected at noon today...