Footnotes on the Nuclear Option -- Part X

by Kagro X

Several problems in the filibuster post-deal wrap-up keep cropping up, one considerably more serious than the others:

1. Near misses on analysis that peg the most glaring "gap" in the agreement as the lack of a definitive answer on whether or not the nuclear option is "off the table;"

2. Complete whiffs on complaints that the failure of the cloture vote on Bolton violates the terms of the agreement on judicial nominations, and;

3. Continuing confusion about whom the deal commits, and to what they are committed.

First up, Dan Balz of the Washington Post:

The fragile compromise that averted a Senate showdown over judicial filibusters last week deliberately left unanswered the crucial issue likely to be at the heart of a debate over a future Supreme Court vacancy: Can Democrats filibuster a nominee on the grounds that he or she is too conservative without triggering the "nuclear option"?

[...]

The biggest gap in interpretation of the agreement centers on the nuclear option itself. The morning after the Gang of 14 announced its deal, Senate Minority Leader Harry M. Reid (D-Nev.) took to the Senate floor to declare: "It took the nuclear option off the table. It is gone for our lifetime." Moments earlier, Senate Majority Leader Bill Frist (R-Tenn.) offered the opposite view. "Let me be clear," he said. "The nuclear option remains on the table. It remains an option. I will not hesitate to use it, if necessary."

OK, I disagree. The issue of whether or not the nuclear option is or isn't on the table is addressed by the existence and nature of the agreement itself. It should be perfectly clear that the success of the agreement is premised on its being honored by its signatories, and that the nuclear option is off the table for so long as the signatories agree either that no filibusters are going on, or that any that are going on are taking place under "extraordinary circumstances." Reserving the right to adjudge circumstances as extraordinary or not means the signatories have reserved the right to topple the last barrier holding the nuclear option back: i.e., the votes to make it happen. The nuclear option is always an option. It's just not a viable one until enough signatories agree to support it on the floor.

So while Balz gets the bat on the ball here, it’s a foul tip. Yes, there is disagreement about whether or not the deal takes the nuclear option off the table, but the particular disagreement he cites, it’s worth noting, is among non-signatories. All the indication one needs of whether or not the nuclear option is off the table comes from the statements of DeWine and Graham, who say they reserve the right to support it on the floor if they feel signatories aren’t living up to the agreed-to limitations on the use of the judicial filibuster.

And let me highlight that again: This is an agreement among 14 individual Senators, not between Republicans and Democrats, though those are the parties the signatories belong to in equal numbers. This has important implications. For one thing, the agreement must be understood as being among the 14 and no one else. Frist has already rejected it, and has reserved the right to proceed with the nuclear option on Myers. This is proper, as he is not a signatory to the agreement, but ill-advised, as he is going to suffer another humiliating loss if he follows through, since the proper response from signatories will be to reject the nuclear option with respect to his nomination. That’s the plain meaning of the agreement. But by the same token, it must be acknowledged that other non-signatories are equally unbound by the agreement’s terms. Filibusters of future judicial nominees conducted by non-signatories do not and can not violate its terms. Only the participation in such a filibuster – a judicial filibuster, it now appears necessary to point out – presumably (but not explicitly) by one of the Democratic seven, and only then in non-“extraordinary circumstances," can be considered a breach of the deal’s terms.

Claims to the contrary – i.e., on Bolton – are demonstrably untrue, and reporters covering the story ought not to be shy about saying so. For United States Senators to so clearly misread a one page document is a travesty. For reporters to permit them to do so without question is a shameful embarrassment.

Next up: George Will. Don't ask me why I take it from the New York Post.

Democrats have agreed to stop filibustering the confirmation of three judges they have hitherto identified as extraordinarily dangerous to fundamental American liberties. One of the three, Priscilla Owen, is an impeccable representative of mainstream conservative jurisprudence. Have Democrats reserved the right to filibuster similar nominees?

Another of the three, Janice Rogers Brown, is out of that mainstream. That should not be an automatic disqualification, but it is a fact: She has expressed admiration for the Supreme Court's pre-1937 hyper-activism in declaring unconstitutional many laws and regulations of the sort that now define the post-New Deal regulatory state. Conservatives are justified in believing that her libertarianism will usefully leaven the federal judiciary. But have Democrats, by allowing her confirmation, said that a nominee like her does not constitute an "extraordinary circumstance"?

First of all, “Democrats” have not said anything about whether the nominations of Brown or Owen constitute “extraordinary circumstances.” Seven Senators who happen to be Democrats have entered into an agreement to permit their nominations to come to a vote by pledging to support cloture, but the Senate Democratic Caucus as a whole had nothing to do with it. There are, after all, thirty-seven other Democratic Senators not bound by the deal.

Second, the fact that the deal contemplates excusing the participation in a filibuster by some or all of the Democratic seven does not mean that they don’t reserve the right not to filibuster in “extraordinary circumstances.” The terms of the deal are difficult enough to pin down without George Will and others pretending the agreement says something it doesn’t. The agreement does say that the right to filibuster is reserved, in case “extraordinary circumstances” should arise. It doesn’t say that “extraordinary circumstances” will be defined by decisions to filibuster. It says that should any of the signatories find, at “his or her own discretion and judgment,” that such circumstances exist, a filibuster is possible. Not mandatory, but possible.

Now, one of the major shortcomings of the agreement is that we won’t know whether such a filibuster is permissible until the rest of the signatories pass on the “discretion and judgment” of the signatories who believe that “extraordinary circumstances” exist. But we do know that the agreement does contemplate such circumstances. Will, among others, mistakenly reads into the agreement a yardstick for defining “extraordinary” that just doesn’t exist. It also ignores the fact that the nature of this agreement is such that it dispenses with pending nominees specifically and by name, and separates out the treatment contemplated for all future nominations in an entirely separate section. There could be no clearer indication that the agreements on Brown, Pryor and Owen (and for that matter, Myers and Saad) have no bearing on future nominations, nor on whether or not future nominations create "extraordinary circumstances." This agreement is in two parts: 1) what to do now, with these nominees, whether they be "extreme circumstances" or not, and; 2) what to do in the future. Pending nominess get special dispensation.

Further:

Majority Leader Bill Frist's promise to "closely" monitor Democrats' compliance with the deal concerning judicial confirmations will not require minute measurements with a jurisprudential micrometer. Democrats, that herd of independent minds, will or will not, as a bloc, filibuster a nominee whose only discernible disqualification is his or her deviation from the prevailing consensus in the faculty lounges of the Yale, Harvard, Michigan, Chicago, Stanford and Columbia law schools.

It certainly will not require a micrometer. News flash: Majority Leader Bill Frist has no business monitoring compliance with this deal, “closely” or otherwise. He has already reserved the right to reject it as a non-signatory. In this, he is within his rights. To now claim a role in “monitoring” it is illegitimate. Raise your hand if you’d like Bill Frist to “monitor” contracts to which you are a party, but he’s not, from now on. George? Didn’t think so.

This agreement, like all agreements, are between the parties involved. Non-signatories may reserve the right to ignore it, complain about it, cry in their soup about it, or run for president in opposition to it, but they may not enforce it. By the same token, Democrats who are non-signatories may filibuster a nominee for any reason they choose without endangering the terms of the agreement, because it's not their agreement. George? Bill? Pick a side of the fence on this thing, and stay on it. Your neighbors will thank you.

Comments

[Coldblue Steele]

According to the Associated Press Reid has already requested the Democratic signatories filibuster Kavanaugh and Haynes.

In the privacy of his Capitol office last Monday night, Sen. Harry Reid, D-Nev., asked for commitments from six Democrats fresh from the talks. Would they pledge to support filibusters against Brett Kavanaugh and William Haynes, two nominees not specifically covered by the pact with Republicans?

Some of the Democrats agreed. At least one, Sen. Ben Nelson of Nebraska, declined.

We'll see how long the deal holds up.

[Mimikatz]

Your reading seems to be right. The deal is really a mutual agreement on when the 14 will be bound to buck their own leadership. That is the heart of the deal, and Frist (and Reid) have no part in it except that they can decide when to force the issue.

The talk was always about a pact between 6 or 7 folks from each party who would, between themselves, decide whether they would ALL vote for cloture (in which case cloture would presumably pass) or would ALL vote against the "nuclear option", in which case it would fail. There are 48 GOP Senators who would (presumably, but not definitely) vote for the N.O. and for cloture. Whether the R's get to 50 on the N.O. or to 60 on cloture depends on at least 6 R's voting no on going nuclear, and 5 of the Dems (and all the R's) voting for cloture. That is essentially what they agreed to do together.

Frist has no control here except whether he wants to put the agreement to the test by forcing the 14 to vote on one or the other. This, of course, is exactly what the 14 have banded together to try to avoid. You are right that it has nothing to do with what the other 37 Dems are doing on any future nominee.

Once a cloture petition is filed, if some of the R's decide that by not voting for cloture on a particular nominee, one or more of the Dem signatories has breached the agreement, then on the ensuing nuclear vote, they are released from their obligation to vote it down. But does anyone think there wouldn't be some discussions before that happens?

The other factor not being discussed (at least in the quoted portion of the articles) is Bush's role. He can send up nominees that aren't so extreme as to ultimately require a cloture vote. That was clearly Graham's hope, and presumably the hope of the others.

And seeing Janice Brown as some sort of standard is clearly misplaced. Supreme Court nominations are so rare and so important that they are almost by nature "extraordinary." I think that is the warning to Bush.

[emptywheel]

Two comments. One, a lot of reporters are also assuming that the deal ensured Owen, Brown, and Pryor will all pass. I'm not sure that's true. Graham has said enough to at least hint that either Brown or Pryor WON'T pass. Will the conservative journalists come back, if Brown is voted down with bipartisan opposition, and note that there IS a standard?

Also, I don't think it's fair to assume there are 48 GOPers who would vote for the nuclear option. As it is, I suspect Chafee was thrown in at the end (which is nice, because it gives both sides a one-vote margin of comfort). But Specter probably wouldn't have voted for the NO. And there are people like Lott who--well, who knows what they would have done??

[RonK, Seattle]

The agreement is peculiar in that it is premised on a meeting of the minds that has not yet occurred, and may yet never occur.

When a test case arises, the signatories are supposed to confer and reach some sort of consensus. The current casting leaves a one-vote margin for defection on either side, and this margin could be erased in a heartbeat. I can't be optimistic over The Deal's long term prospects.

At the same time, the immediate crisis has been defused. Where Frist stood holding a torch to the Constitution, The Deal created a little buffer of space and time.

New adherents might yet sign on, new understanding might yet emerge, etiher side might temper their tactics to avoid a confrontation on such a fogged-in field.

In any case, the ground is shifting very rapidly under Frist's feet. It may be shifting somewhat less rapidly under Bush's hob-nailed boots, and Senatorial Republicans may be impelled to adjust their footing accordingly. Not an ideal world, but neither are we on a no-exit road to Constitutional Hell.

We'll know a lot more by Independence Day.

[Kagro X]

Here's an interesting nugget from Coldblue Steele's linked article:

Details of Reid's attempt to kill the two nominations within minutes of the agreement, as well as other events during this tumultuous time, were obtained by The Associated Press in interviews with senators and aides in both parties. They spoke on condition of anonymity, citing confidentiality pledges.

I wonder whose idea of honoring a confidentiality pledge is speaking to the press, but only on condition that they don't get caught.

Also interesting in this article was the repeated assertion that "Democrats" were committed to this or that course of action, but no parallel construction regarding Republicans. Also no mention of what would happen if Republican signatories were the first to challenge the agreement. This hasn't been discussed anywhere, as far as I know.

[Coldblue Steele]

John McCain was interviewed on Hannity & Colmes. Here is a snip that might be pertinent;

HANNITY: If there's a nominee like a Miguel Estrada (search), if there is a nominee like a Robert Bork (search) or a Scalia or a Thomas, and the Democrats say that's an extraordinary circumstance, will you then join with Bill Frist and go forward with that option, because you feel that they will have broken the agreement?

MCCAIN: I will — I can't name those names because I never examined any of them that carefully although Estrada clearly was qualified. But if we make a judgment that these nominees are extraordinarily unqualified, we'll agree with them. But if they're not, then we will — we will go ahead and go forward.

HANNITY: But Rehnquist, Scalia, Thomas, those are all qualified people who should not be filibustered? People like them.

MCCAIN: I don't think these seven — remember, I didn't make the agreement with 45 Republicans — Democrats. We made it with seven Democrats. I'm confident that these seven Democrats would — would not filibuster those individuals.

HANNITY: All right. We'll be watching. You're now a movie star. Congratulations.

MCCAIN: I thank you, Sean. And again, watch what happens here in the next few months before we make a judgment.

My thoughts on this are that Harry Reid needs to continually remind Republicans that he can blow up their pet legislation if they follow Frist on the NO.

[Kagro X]

You're right, of course. But it would also be nice to hear that from the seven Democratic signatories. That they can trigger the Democratic response to the nuclear option if the seven Republican signatories are too rash or too strict in their interpretation of the agreement.

[DemFromCT]

the spinmeisters have been working overtime on both sides, but especially on the non-senatorial R side (Novak, O'byrne, etc) in trying to define that Brown represents the new standard of this side of extreme. apparently they think if they keep repeating it, it becomes true.

I agree with RonK that the shifting ground, as pushed along by my pick of the month, stem cells, will leave the senate in a different place when this/if this comes up again. and I agree with Kagro that it's up to the senators (not the pundits) to define reality.

brownstein sez :

Conservatives are guaranteed the dominant voice in the GOP for the foreseeable future. But after last week, they no longer appear to be the only voice. No wonder so many of them are howling.

that would explain why they're rushing to define the deal on their terms.

[Coldblue Steele]

Indeed, it would be better if the seven Democrats were as outspoken as Lindsey Graham or McCain. However when I look at who they are, the only one who gets media attention is....Lieberman. Ack!

[Mimikatz]

I have heard that Lindsay Graham's remarks did not mean that Brown or Pryor would not be confirmed but referred to Kanavaugh and/or Haynes. Graham was in JAG and did not like the decision to remove JAG officers from interrogations, and other decisions made while Haynes was counsel at DOD.

Chafee was on record as opposing the NO (unlike his wimpiness on Bolton) so he wasn't the GOP add-on. Inouye seems to be the Dem add-on, but it would seem the GOP needed seven more than the Dems, so he was there for balance. DeWine, Warner and Graham were the ones not already on record. Specter could do anything, and it does depend on who is the nominee in question and where we are in terms of other issues (and Frist's position) in the summer.

[emptywheel]

Mimikatz,

Yeah, that may be right. The only reason I think it MIGHT be Chafee is because he signed on one of the ad-hoc lines added after the document had printed out, Inouye the other. There was a bit of a pecking order to it, with more GOPers signing near the top than Dems.

[Mimikatz]

I had held out hope that Brown might not be confirmed, but read somewhere that Graham's remarks referred to Kavanaugh and Haynes, not to Brown or Pryor. Evidently Graham, who was in JAG, did not like Haynes' removal of JAG officers from interrogations and some of the other decisions when Haynes was at DOD.

And Chafee had been on record as saying he would vote against the NO. The add-on from the Dems seems to have been Inouye, but I don't think it was Chafee. Warner, DeWine and Graham were the ones who had not announced previously.

[Coldblue Steele]

Graham has said he is a 'yes' vote on the NO if needed.

I'm a yes vote for changing the rules if we have to be, but I'm willing to back off and not vote yes and vote against the nuclear option if we can get a compromise that will allow these eight nominees to be fairly treated and deal with the future in a more traditional way.

I can't tell you what the future holds. I can't tell you what exceptional circumstances may be for some Democrats.

Link

[Kagro X]

I can't tell you what the future holds. I can't tell you what exceptional circumstances may be for some Democrats.

This is your sign that Graham is at least not of a mind with his fellow signatories here, and at worst, is not an honest broker.

A deep, mutual understanding and trust would tell you what exceptional circumstances are for the Democrats who are actually signatories to this agreement. But look at how he couches his language. He's immediately concerned with "some Democrats." Not his partners, not those with whom he has supposedly reached this higher plane of understanding in order to save the institution of the Senate. He's already got his eye on "some Democrats" who weren't in the room, and might well have refused to show up if invited.

Already looking for an out.

[DemFromCT]

then again, he also knows he's going to be pilloried. So it's what they do, not what they say (and to which audience). As always. And certainly 'as always' when we only can count on 45 votes.

[RonK, Seattle]

Graham has a conspicuous history of pretending to be in play when in fact he is not. An "ally" to be closely watched.

[emptywheel]

It bears repeating, though, that Graham had the most to lose of all the signatories. He's got the most precarious mix of junior-ness and red-state-ness that makes a move like this really pricey. Either he expects a huge payoff somewhere we're not expecting, or he is just trying to tack right to appease the screaming hordes.

[al-Fubar]

Graham occasionally surprises me, though. During the impeachment I thought he was seriously whacked out, but every so often he strays off the reservation. Having said that, he's probably the most slippery of the 14.

Still, the one thing that we can say of all the GOP signatories is that they don't WANT to go nuclear - otherwise they could have just let Frist roll back the blast doors from the siloes and let fly. And as said upthread, the dynamic is changing. Graham was part of that changing dynamic by being one of the 14, no matter how many fingers he crossed behind his back.

-- Rick Robins

[praktike]

Isn't Tony Perkins already talking about helping a primary challenger oust Graham?

[DHinMI]

Remember that Graham voted against one of the articles of impeachment. Also, note that much has been made of Graham's arrival in middle age without ever having been married. Pointing these things out, and what it's supposed to conote, can occassionally play a role in elections, especially Republican primaries. Talk to Foley in Florida about that. emptywheel is right that he's got the most to lose, so some of what he's saying may be CYA language. But that does not mean that folks' warriness and skepticism about Graham's resolve to abide by the written terms of the agreement is without warrant.

[Bill from Dover]

Two things to keep in mind:

If either party thought that it had the votes it would have forced that nuke in a heartbeat. The Fab 4teen compromised out of fear, not strength.

Repeat after me: "I'm a politician, so who comes first?"

Just tryin to add a dose of reality here.