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May 30, 2005


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.

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.

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??

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.

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.

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.

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.

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.

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!

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.


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.

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.

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.


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.

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.

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

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.

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

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

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.

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.

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