Nuclear Option: It's Up To Us to Help Define the Victory

By DHinMI

The presser is still going on, and people on both ends of the political spectrum are calling this a defeat.  But only one side of the political spectrum calling this a defeat is wrong: the left side is wrong.  This is a victory for Harry Reid and the Democratic caucus in the Senate, and it's a big loss for the Republicans, the White House, and especially Bill Frist.

Here's the deal as far as I can tell.  First, what the Democrats gave up: there will be closture votes on William Pryor, Janice Rogers Brown, and Priscilla Owen.  That means there will not be a filibuster on these three nominees, and presumably, with 55 Republicans, they'll all be confirmed to the appelate court.  Harry Reid just confirmed that the Michigan judges will be confirmed (with one exception).  As darlings of the radical religious right, which is perceived to be important, but as I'll explain, doesn't mean diddly. 

What the Republicans gave up are committments to vote for cloture on William Myers and our old friend, Henry Saad.  That means they will be filibustered, and not approved.

What was agreed by all was a committment to only filibuster in "extreme circumstances."

Thus, the Nuclear Option was not launched, and Democrats retain the option to filibuster a Supreme Court nominee.  As Reid just said, "the nuclear option is off the table." 

Remember, the Democratic goal all along was to retain the ability to filibuster judges, and they apparently will sucessfully filibuster Henry Saad and William Myers should their nominations come to the floor.  The Democrats still have what they wanted to protect, and will exercise that ability to keep two extremist judges from taking the bench. 

Harry Reid calls it a success, but Bill Frist, speaking on the floor of the Senate about the desire to permit every nominee an up-or-down vote, said "the agreement announced tonight falls short of that principle, it falls short.  It has some good news, and it has some disappointing news...As of a couple hours ago, maybe none would have gotten an up-or-down vote."  In other words, Frist failed.  Bill Frist tried to play tough, but the Democrats were tougher. 

Now on the people who will be advanced.  No doubt about it, they are awful nominees.  Other than Henry Saad, the Michigan judges aren't as bad as plenty of other nominees who were approved; the issue there was about past nominees during the Clinton administration.  But Brown, Rogers and Owen are awful.  But they won't be enough to mollify the Dobsonites on the radical right.  They wanted the full nuclear option, and nothing less than the maximum is a defeat. 

I'm sure there will be lots more written on this, but for now, one last point.  The Democrats just made seven close friends among the Republicans.  Why?  Because seven Democrats were part of what had been a six-Dem contingent of a Gang of Twelve.  That meant that six Repubs would have been enough to thwart the Republican majority and the White House, so every one of those six would be deemed "the deciding vote." By adding another Republican and another Democrat to match that Republican, none of the Republicans can be considered the deciding vote.  It was a deft move by McCain and Reid, and was probably crucial to the success of putting the Nuclear Option back in the silo.

So remember, this isn't a complete victory.  But considering that the Democrats just managed to perserve the filibuster, block two extremist nominees from being appointed, divide the Republican-led Senate from the White House, and destroy the Presidential aspirations of Bill Frist, it's enough of a victory for me, and it should be enough of a victory for you too.

ADDENDUM
Harry Reid, on the floor of the Senate:  "Of course there will be filibusters in the future; it's the nature of this institution.  And that's the way it should be...Mr. Smith can still come to Washington."

That's a declaration of victory.  And now, by praising Bill Frist, he's damning Frist to the vicious attacks of the right wing. 

Frist's career is done, and he knows it. 

Comments

[ng]

How can any Dem really trust this group of Brutuses (?). When that soon to be nominated, anti-choice, darling of the far right Supreme Court nominee comes along, does anyone really believe the words nuclear options won't be back??

In other words, is a stall now better than a battle now, or will a successful nuclear option be better now or with that SC nominee??

[DemFromCT]

ng, note that we may">http://www.huffingtonpost.com/theblog/archive/walter-shapiro/bloggers-block-filibuste_1419.html">may not have won tomorrow, though we won't know that now.

[DHinMI]

They just rejected the Nuclear Option except in "extreme circumstances." In other words, by the terms agreed to with the Republicans, anyone the Dems filibuster will be, by definition, extreme.

I think they could only bluff once. The filibuster can continued to be used. And the Nuclear Option is off the table. Dems are ALL saying "it's off the table." Putting it back on the table would be a total reneeging on the deal, and in the Senate, with the principals involved, like McCain and Warner and Snowe, you don't fuck people by reneeging on your word.

I've worked in a legislative setting, and there are always people trusted by people across the aisle, regardless of their partisanship, because of their trustworthiness. Warner, Snowe and McCain are in that category.

[RonK, Seattle]

Very frustrated here.

Trying to come up with a series of one-letter changes that will convert
FRIST
to
TOAST

and I'm just not getting there.

Also a bit troubled by an apparent pass for Brown -- the Bolton of the Bench -- but maybe there's more to it.

OK, Owen is a lock. Can we get to Bolton before the others come to a vote? That could give the Mod's extra practice defecting from the caucus, and facing the fact that Bush has the reverse Midas touch.

[Mimikatz]

I think DH is right, and this is VERY significant. Here's why.

What Bush (and Dobson, and by extention, Frist) value above all is blind loyalty. My way all the way. Seven GOP Senators have said "No thanks, that's not how we do things here."

This is VERY, VERY significant. And, as DH says, the Dems have 7 R new best friends that they can call on in extremis. The filibuster is safe, Brown gets her up-and-down vote, though she may not like it.

Not great, but it's the beginning.

[The Heretik]

I totally disagree on who won tonight. The battle was always over whether we would return to the Nineteenth Century. Live blogged til the Kool Aid got too deep. Republicans">http://theheretik.typepad.com/the_heretik/2005/05/republicans_win.html">Republicans Win Compromise

[NG]

people trusted by people across the aisle, regardless of their partisanship, because of their trustworthiness. Warner, Snowe and McCain are in that category.

Well, my crystal ball must need a new fuse or something because I just cannot get a good read on this now. I grant you that in the logical consequences world seen by "here and now" human beings, that what you say about mutual trust and one word makes sense. HOWEVER, I do no believe we have ever dealt with the likes of this group of conservative fanatics. They are not in the logical consequences "here and now", and they are not logical.

I just think that fighting the nuclear option battle now would allow better strategy planning ahead even with a lose rather than to have to make it up short term under duress with the SC nominee battle nuclear option if they pull that. BTW, I think they will unless the next elections change the mix and no SC nominee comes along before that--unlikely.

It is a tough call!

[Petey]

"And the Nuclear Option is off the table. Dems are ALL saying "it's off the table." Putting it back on the table would be a total reneeging on the deal,"

If this were true, I wouldn't think the deal was bad.

But my understanding is that all 14 of the Senators involved get to individually determine whether or not a filibuster is extreme or not. If two Republican Senators (say Graham and DeWine) determine a filibuster is extreme, they are free to vote for the nuclear option.

If I'm Karl Rove, I send Owen or Brown up for SCOTUS and laugh.

Bad deal.
No victory to define.
Defeat snatched from the jaws of victory.
Worst possible outcome.
Reid will never hold a better hand than he did right now.
Uggggggghhhhhh.

[DHinMI]

Mimikatz, I've always thought you were one of the shrewedest people on the blogs, but I especially think you're shrewd when you're agreeing with me. ;-)

Seriously, you're dead on, it's HUGE that those seven Repubs just stood up to Bush and their right wing activists. That's just huge, and probably the first time it's happened on anything important in the entire Bush presidency.

[DHinMI]

NG, they're not the conservative fanatics. Snowe's a moderate, Warner is an old-fashioned conservative, and McCain is a mix of the two. What's important is what Mimikatz pointed out: they just stood up to the radical right. They refused to be cowed by the fanatics. This is a huge development.

[DemFromCT]

yeah, it's only NRO, but...

THE DEAL [Jonah Goldberg]

From a reader:

Dear Jonah,

So let me get this straight. The Democrats agree top allow three votes they can't stop in return for the Republicans stopping all the other votes they ( the Democrats) can't stop. The Republicans agree that the Democrats can do this again if they decide conditions constitute an "extraordinary circumstance", and the Republicans agree that until the next election they will allow them to do this witout fear of retribution. This is what passes for moderation and compromise in Washington? What did we gain that we didn't already have? What did we give up in return for nothing? Forget the RINO argument, any Republican that agreed to this deal is just plain stupid and deserves to be defeated for incompetence.

...my quick foray into R Blogistan suggests we coulda done worse.

[DHinMI]

What did we gain that we didn't already have?

Bingo.

The 55 seat majority just acquieseced to the 45 seat minority.

[Mimikatz]

Thanks, DH. Steve Clemons pointed this out last month re: Bolton. It is very important for Bush to be able to reward blind loyalty in order to keep receiving it. That is another reason he has to fight for Bolton.

I just hope Steve is wrong that a pass on Bolton is part of the deal. I think it is time for a long, long debate on this guy on the floow of the Senate.

[ROuze]

Perhaps I'm gullible or too trusting in the rhetoric of the "historic Senate," but I agree with the above posts that Frist/Rove/Dobson are not at all happy about this. The sight of Dick Cheney changing the rules of the Senate by breaking a 50-50 tie would have unleashed a tide of triumphalism that would recall 2003 in not so pleasant ways. The symbolic victory for the White House basically muscling the Senate via the departing Majority Leader would have had scary consequences for SC nominations. Remember, the radical right loves to turn narrow victories into dictatorial steamrolling: 50-50=90-10.

The symbolic statement of this compromise is to at least restore the potential for a true Advisory role for the Senate. Perhaps Graham, McCain, et al will feel a little juice to remind the WH to check in with the Senate in some form before jamming nominees through.

Curious note: where was Specter? They really do have his cojones in a vise over the Judiciary chair.

I consider myself Left to be sure, but I think compromise was the best option. I think Frist had the votes, however slim, and the consequences of that would have been unfortunate, long and short term. As cheesy and overused as it is, "the cooling saucer" image is apt to describe the Senate's vital role in the Republic. Otherwise the Senate would be at the mercy of the Thunes and the Coburns. Yeah many Senators are pompous grandstanders, but its the only branch left to check the Executive, and the pomposity is their animating force.

[Meteor Blades]

I'm always cautious of instant analysis. That said, my own take on this is visceral, so when I heard about the compromise, I was spitting nails.

Extremist that I am, I would have preferred a filibuster on all five of those judges, even though I know the Democrats don't have that kind of clout, and some of the moderates who brokered this deal would probably have abandoned us anyway on several of the nominees. From that perspective - two of five judges blocked - I guess it's a win in the short run.

However, it's in the long run that we'll only see if it's really a win.

[emptywheel]

NG,

I've been saying that myself--better to fight now, while we're all ready for it.

But I'm also seeing this as a battle victory that may yield further battle victories. At the very least, we have changed the makeup of both sides. Don't know whether that will be enough to win the NEXT battle (and hopefully by a larger option). But I do know our leadership just got strengthened, whereas the GOP leader, if you can call him that, will have a great deal less authority tomorrow morning.

[~DS~]

Good post. I'll linky link.

[ng]

I just carefully read the actual compromise agreement, and of the two parts related to the filibuster, the more important one is the agreement not to avoid the normal rules changing mechanism. The part about extraordinary circumstances being needed for a filibuster of SC nominees seems weak by itself because any one of the signers of this agreement could just back out if they thought circumstances were not extraordinary. However if I understand the agreement to mean that the Repubs now agree that changing the rules is the issue, and they will not do this without the required ?2/3 majority, now that is something! Again of course, can they be trusted?

[Petey]

If there really is a secret agreement to vote down Brown on the floor, this all begins to make a bit more sense to me.

[pontificator]

The pressure will be 10 times as hot in the event of a Supreme Court nominee. If one of the R signatories to this agreements attempts to relaunch the nuclear option in that instance, I would expect the rallying cry to be: "You can't trust Senator X to keep his word."

[M31]

frister
foister
moister
hoister
holster
bolster
boaster
toaster

RonK, I couldn't do it without the 'er', though 'frist foist moist hoist heist' is very apt.

[Petey]

"However if I understand the agreement to mean that the Repubs now agree that changing the rules is the issue, and they will not do this without the required 2/3 majority"

The escape clause for Part 2 is this phrase:

"In light of the spirit and continuing commitments..."

DeWine claims that the signatories understood that to mean that if individual GOP Senators felt the Dems were filibustering without true "extraordinary circumstances", then they would be free to break the rules in nuclear fashion.

But more importantly, if the Brown and Owen filibusters are not "extraordinary circumstances", then what is?

[DHinMI]

I think they can be trusted. Graham has been a maverick waiting to happen for a while. Collins needed some bucking up to join Snowe as someone willing to act on at least some of her convictions. And Warner and Byrd showed all these guys how it's supposed to be done. The admiration and respect that McCain and Warner showed Byrd was real: that's the kind of relationship that's supposed to prevail in the Senate.

What I think may be interesting from here on out is the effect this break from the wingers and the White House by these seven Repubs might have on some other people with at least some decency but a lack of courage--people like Lugar. This may not go anywhere. But I think it's huge, because I think it created space for the Senate to act independently of the WH and the wingers.

On a completely different subject, this stuff has so monopolized my attention over the last few hours that I forgot the Pistons were playing. Let's hope they keep their current 8 point lead.

[emptywheel]

Petey,

Don't know whether there is (although apparently Graham was mumbling that not all of them would pass). But if I were a compromise Senator, something like that would sure reinforce the value of an up or down vote AND instill confidence in the larger agreement. And what better way to release some of the pressure the GOP compromise Senators need to be under--the fundies have been arguing that these judges have "bipartisan majority support." They might be a little more humble if they were proven wrong on that one.

[Petey]

"On a completely different subject, this stuff has so monopolized my attention over the last few hours that I forgot the Pistons were playing."

Given the way Shaquille is moving, I'd start worrying about the Spurs if I were you.