By Kagro X
Which do you want first?
Well, you're getting the bad news.
Here’s the problem with the deal: There’s no direct commitment by the Republicans to affirm the constitutionality of the filibuster with respect to judicial nominations. That should have been one of the minimum basic requirements of the bargain, but it wasn’t. Why should it have been included? One reason, of course, is that that’s the issue at the heart of the entire controversy. The other is that in a real deal that represented an actual meeting of the minds, it could have been easily settled. Nobody, at the moment, disputes the constitutionality of filibustering other executive appointments, despite the fact that they also require the very same “advice and consent” of the Senate. So the fact that this issue wasn’t addressed is very telling, and what it says, clearly, is that some of the Republicans who were party to the agreement wouldn’t commit on the issue.
We know who they are: Graham and DeWine. They’ve said as much. It’s
possible that the others agree with them, but they haven’t been as
forward in saying so. This is a huge hole in the agreement as far as
I’m concerned, and though I’m inclined to take at their word(s) the
Senators who proclaim their undying trust in one another, I’m not at
all sure that what they've agreed to trust one another about is, in
fact, the issue which needed resolving here.
Split into its component parts, the 14 appear to have agreed to
prevent the immediate triggering of the nuclear option, but under
circumstances of questionable value to Democrats -- that is, on the
nominations of Henry Saad and William Myers. But even that is not
entirely clear. All the agreement actually says is that there's "no
commitment to vote for or against cloture" on these two. Meanwhile, the
commitment to vote for cloture on Pryor, Owen and Brown does have the
effect of disarming the nuclear option in the most immediate future,
but only under terms that Frist himself would have been equally happy
By the way, what I mean by the agreements on Saad and Myers being of questionable value to Democrats is that it now seems clear that those nominations are doomed for reasons other than the extremism of which Brown, Owen and Pryor are accused. There were hints the other day that there was something in Saad's FBI profile damning enough to stop his nomination with or without the nuclear option. And Myers has been on the Senate calendar for months, even as Frist was beating the nuclear option drum, and no action was taken on his nomination. Somebody was less than motivated to move that one along, for whatever reason. So these were nominations that 1) opponents might have prevailed on anyway, and 2) weren't really raising the kind of opposition the others have garnered.
This is probably a good place to note what might be the hidden tactical value of bringing the Owen, Brown and Pryor nominations to the floor first. It was widely assumed that Owen and Brown were being moved ahead of Myers because they made more sympathetic figures upon which to build the case for launching the nuclear option -- both women, one African-American, glass ceilings, bootstraps, yadda, yadda. But it's also looking clearer and clearer that it was more than that, and more than just purposeful provokation, it also likely guaranteed that the terms of the deal would include cloture on these nominees, though perhaps only because they were already at the fore, which made surrender on them too much a loss of face for the Republican contingent of the 14 to accept. If true, smart thinking.
So, what could possibly be good about a deal that doesn't really settle the main issue residing at the heart of the nuclear option confrontation? Well, the very fact that Graham and DeWine wouldn’t commit to affirming the constitutionality of the filibuster against judicial nominees should be taken as ominous foreshadowing. It reveals the most likely outcome of a nuclear option vote, had it come to that: Frist would have prevailed, with Graham and DeWine as his 49th and 50th votes, at minimum. The game actually was over, but we didn't know it yet. And on Tuesday, the minority would have lost the ability to block any judicial nominees ever again, the filibuster being the last mechanism capable of stopping a nominee still in place.
Would Democrats have been better off without the deal? Given the nominees currently on the table and the way they're treated in the terms of the agreement, it's hard to say. At the moment, it certainly appears that the worst of the lot are going to get their up-or-down votes, while the two for whom there is no commitment one way or the other have problems of their own, but not of the same sort as the three now cleared for action. The value of the deal will be determined in the longer term, when we find out who the next batch of nominees are, and test whether any of them trigger the "extreme circumstances" clause.