A careful reading of Charles Babington and Susan Schmidt's WaPo article, first mentioned below, reinforces my view that the Republican position regarding the filibuster question is now much stronger than it was before the May 23rd deal. Democrats are committed to the agreement that a judicial nominee can only be filibustered in "extraordinary circumstances." I think that this very language favors the Republicans. Dissenters will argue the phrase means nothing, and that Democrats will merely interpret it at their pleasure.
But Democrats can now maintain a block on nominees only if "extraordinary circumstances" means the nomination of anyone who agrees with the other side's position on abortion, affirmative action, etc. But that standard threatens to bring the nomination process to collapse. Democrats would block any nominee who shares the Republican view, and Republicans, in the majority or not, would do the same. Persons like Stephen Bryer and Ruth Bader Ginsburg could not be confirmed. Perhaps someone whose views are a complete mystery would have a chance, but if either caucus demanded a nominee on record as supporting the right positions, no one could be nominated. The Republicans do not have to be very clever to show that this is unreasonable.
A second interpretation, which we may call the Fox Channel reading, is that "extraordinary circumstances" would mean, at the very least, someone more conservative than Janice Rogers Brown, William H. Pryor Jr. and Priscilla R. Owen. This is a vague enough standard to cause a lot of trouble; but Bush could force the matter by nominating one of these to the High Court, or more as openings become available.
A third and much more sensible standard is the one that seems to be accepted by many of the gang of 14 who engineered the May 23 compromise. Under this reading, a nominee could not be blocked for his or her judicial opinions, but only for questions of ethics and character. So a Republican president gets his Browns, Pryors, and Owens, and a Democratic president gets her Bryers and Bader Ginsburgs. Obviously there is a little to tolerance of judicial views. If a nominee were discovered to be an ardent admirer of Hitler, or Stalin, or Osama Bin Laden, the circumstances would then be most extraordinary. But such a nominee would be opposed by both parties.
I suggest that the filibuster on nominations should remain as an option, but only if the latter interpretation is respected. Republicans should make it clear that anything less breaks the deal and is itself a threat to the Senate tradition and indeed to the constitutional process. If the deal is broken, the nuclear option should then be resolutely deployed.
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