Most conservatives continue to regard yesterday's Senate compromise as a defeat for the Republicans. The reason for this is that they were smelling blood. If Senate rules had been changed to disallow filibusters on judicial nominations, Bush would have been free to replace the next Supreme Court vacancy with just about anyone he chose. That's tempting indeed. But it carries with it the serious risk that the Republicans would be perceived as radical, and that is something they can ill-afford. The Democrats are just better at behaving radically and getting away with it, especially with a sympathetic press.
In addition to up and down votes on the most convservative of the blocked judges, the Republicans got this clause:
Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.
The Democrats got this one:
In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the rules of the Senate that would force a vote on judicial nomination by means other than unanimous consent or Rule XXII.
Some indication of how this shakes out is the way Democrats like Reid and Shumer are spinning the deal. They say "the nuclear option is now off the table, for our lifetime." This ignores the qualifying language: "In light of the spirit and continuing commitments made in this agreement." The Democrats want to interpret the document as binding only on Republicans, with Democrats free to reinterpret it with every nomination. But if at least two of the seven Republicans who joined the agreement should conclude that the Democrats are acting in bad faith, the compromise would clearly be dissolved. Bad faith will be evident if the Democrats return to using the filibuster as an ordinary instrument of opposition.
I think morever that the bar has been raised pretty high on what "extraordinary circumstances" are. A judge would have to be more conservative that Owen, Brown, or Pryor, who have now been approved, or would have to have some serious dark mark against him or her. More important, the first use of the filibuster against a judicial nomination will make it harder to use against the next judge, without seeming to break the agreement. Lastly, it will make it harder for the Democrats to use the instrument against a Supreme Court nominee who is obviously well qualified and can show that most of his decisions fit squarely with the vote of a majority of the sitting court.
If the Democrats are smart, they won't filibuster a single nominee until the first Supreme Court vacancy. That would make them look honest, and make it harder for the Republicans to use the nuclear option. But that will take more discipline, I think, than they have at their disposal.
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