Last May, most conservatives (my favorite blog, Powerline, is a good example) argued that the filibuster compromise brokered by the "Gang of 12," a bipartisan group of Senators, was a defeat for Republicans. Under that compromise, Democrats promised not to filibuster except in "extraordinary circumstances." The Republicans in turn agreed to surrender their threat to end filibusters in confirmation votes.
I argued to the contrary in a May 24th post. I note also this post, and this one. I thought that actually ending the filibuster would have painted the Republicans as radicals, and that's never good in American politics. Instead, by using the threat of ending the filibuster, they secured the "extraordinary circumstances" standard, and I thought that standard clearly protected most otherwise viable conservative nominees.
Some indication of how [the compromise] 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 moreover 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.
Looking back, we see that Bush replaced Rehnquist with a new chief justice who looks to be as reliably conservative. And it appears that Sandra Day O'Connor's squishy swing vote is about to be replaced with an even more solid conservative. Given the tone of the hearings, I don't believe the Democrats ever had any intention of deploying the filibuster. If Alito is indeed confirmed, then I was right. What were the odds of that?
UPDATE: James Taranto, at Wall Street Journal's Best of the Web, confirms my analysis.
[The Democrat's weakness during the Alito Hearings] helps illuminate how last May's filibuster compromise has turned out to be extremely beneficial for the Republicans. As a practical matter, it ensures that the Democrats cannot filibuster Alito's nomination, because doing so would require at least three of the seven compromising Democrats to violate the agreement and at least six of the seven compromising Republicans to abjure the nuclear option nonetheless.
But by averting the nuclear option, the compromise kept open the option of a filibuster in theory. The Democrats, however, must act as if the possibility is more than theoretical, because to do otherwise would be to admit that they suffered a total defeat back in May. (The seven compromising Democrats have a slightly different incentive: As long as they keep alive the notion that a filibuster is a real possibility, they get to pretend to be power brokers.)
The Angry Left, believing that the Democrats actually could stop Alito's nomination through a filibuster, increases the pressure on Kennedy, Biden, et al., prompting them to behave like jerks, revealing their extremism and obnoxiousness to all the voters of America. We liked the filibuster compromise from the start, but even we didn't imagine it would be this good.
Recent Comments