More Musings on the Nuclear Option Agreement

By DHinMI

As Meteor Blades warned last night, there’s an inherent danger in instant analysis. But with the perspective of some sleep and the opportunity to read and hear the reactions of literally hundreds of other people to last night’s agreement that appears to have averted a launch of the Nuclear Option, I still think it was a pretty good deal for the Democrats. DemFromCT’s argument that it’s a victory for the center seems right to me, and as he shows with excerpts from some of the opinion-shaping media sources, that seems to be the emerging consensus. I’d like to add a few thoughts that I think may be getting overlooked or underemphasized.

This Agreement Didn’t Just Preserve the Filibuster, it Strengthened the Filibuster.

This is important not only because it allows the Democrats to filibuster in the future. By preserving the filibuster, the agreement maintains—maybe even increases—the threat of the filibuster. Without the filibuster, any Supreme Court vacancy would have been filled with some whack-job winger seeking to overturn the New Deal. Now it’s more likely that a chastened Bush administration would have to submit the nomination of a deeply conservative Justice but possibly not one as radical as they would otherwise have appointed. Furthermore, and most importantly, this agreement completely shifts the debate from where it was 18 hours ago, on the legitimacy of the filibuster itself. By preserving the filibuster, even if only for extreme circumstances, it means that the filibuster has been affirmed as legitimate. Thus, any future use of the filibuster will center not on whether the filibuster is legitimate, but whether it’s a legitimate application of the filibuster. For those seeking to eliminate the filibuster, this is a crushing and total defeat. 

This is Bush’s First Defeat at the Hands of Republicans

This agreement broke the Congressional Republicans’ lockstep acquiescence to the Bush administration. The importance of this cannot be overemphasized. Through four-plus years of his administration, George W. Bush was able to count on the eventual support of his own party, so almost all efforts at persuasion and coercion were directed at Democrats. Today, the Bush administration is facing the reality that they will have to also deal with the Republicans in the Senate. With a damaged Republican leadership in the House—and the expected passage and resulting veto of the stem-cell bill—Bush no has much less control over Congress than he did before. Which leads to…

omMcCain is the Power Broker in the Senate

Some will be inclined to view this a helping McCain become President. I’m not sure McCain is running, but even if he does, I don’t see how he gets the nomination. He was already distrusted by the radical religious right; now he’s hated by them. But in the near term, strengthening McCain at the expense of Frist is positive development. It’s a sign that the adults have taken control away from the children, and McCain (presumably with the quiet support of Specter, who’s still the Judiciary chair, and the more vocal support of Armed Services chair Warner) represents a viable faction in the Senate. They’re not all moderates, but when you take Chafee and Snowe and add Collins, McCain, Specter, Warner, Graham and probably a few others, you at least have a nascent “reality-based caucus.” That’s good for the Senate, and good for the country.

This Agreement Drives a Big, Sharp Wedge in the Republican’s Governing Coalition

James Dobson and his bigots just lost their appetite for compliantly attacking only Democrats at their next Injustice Sunday event. By Bush losing absolute control of the Senate Republicans, it means the wingers just lost absolute control of the Senate.  I’m not inclined to think the wingers were in charge of Bush, but I suspect they think they were. But now they realize they couldn’t control the Senate, and Bush couldn’t control the Senate. Now the enemy isn’t all beyond their fold, they now have to confront the enemy within. If the Republicans are fighting amongst themselves, then that’s less time, energy, lies and animus being directed at the Democrats. I welcome their internecine fighting.

The Agreement has Tangible Results 

At least two nominees—William Myers and Henry Saad—are toast. Whether their nominations are pulled or they’re advanced for a vote and subsequently filibustered, they’re not going to be approved. Last night Lindsay Graham hinted that at least one of the three being brought to a vote—Owens, Brown and Pryor—will be defeated by a bi-partisan vote. If Graham is right, that’s great, because it puts the lie to the Republican claim that the problem was that Democrats were preventing the certain approval of all three judges, and make it clear that the problem was that Bush was nominating extremists. I hope Graham is correct, and I further hope that the loser is Brown, who by being seated on the DC Circuit could exert a wide influence on a whole range of regulatory issues that are typically directed there rather than one of the regional circuits.  But even if it’s Pryor or Owens, the damage to Bush will still be real.

The Democrats Held Together

It’s still unclear to me whether the Democrats would have been able to defeat the Nuclear Option. But it does seem clear that the Democrats presented a completely plausible threat to stick together in voting against the Nuclear Option and to then, should they have lost, brought the Senate’s work to a crawl. There’s not much a 45 seat minority can do against a 55 seat majority, but presenting a believable threat to completely gum up the works is effective. Their success in doing so is a credit to all the Democrats, even previous wobblers like Ken Salazar, and the so-often infuriating Joementum. They each deserve individual praise, and Reid and Durbin deserve great praise for holding everyone together. It was quite an achievement.

The Deal Probably Saved at Least One Democratic Senate Seat

I’m not sure Robert Byrd’s reelection has ever been in doubt (other than possibly his health). But after yesterday, with McCain and Warner praising him so warmly, and him establishing his importance as the protector of the Senate's escutcheon, he’s probably unbeatable. Far more significant, however, is how this helps Ben Nelson. A Democrat from one of the reddest of all states, he’s going to be endangered until the after the polls close on election day in 2006. But being at the center of this agreement helps him tremendously.

The Other Winners and Losers

The biggest loser is Bill Frist. He promised something he couldn’t deliver, and his political career is done. Sure, the wingers are saying nice things about him, and they don’t feel betrayed by him, but they surely fell that he let them down. He’s done, and now George Allen (or maybe Brownback) will become the darling of the radical right. Frist, being a doctor and having a non-odious public demeanor and a history of sincere good deeds, is at least on paper more than an empty suit. Allen is just an empty suit. The other big loser, obviously, is Bush, for all the reasons I listed above. 

The winners are many. The Republican center found a couple vertebrae. When we don’t control any of the levers of power, it’s better to have the reality-based caucus on our side on at least a couple issues. The other big winner was the Senate as an institution. Sacrificing the filibuster would have sacrificed the unique influence of the Senate on our national politics and policy. It would have been much more like the purely majoritarian House. Republican Senators finally asserted their self-interest, and the Senate remains the Senate and not just the small chamber of Congress.

Some of this may be proven wrong, or sanguine, or just plain nuts. But I think this agreement was a turning point. I don’t think it means we’re going to see great legislation coming out of the Senate, or a significant increase in respect and cooperation throughout out body politic.  But I think it gives extra targets to the radical right, and it emboldened some Republican Senators to at least be a roadblock and not just a speed bump. Whether it will last, and the full effect of the agreement, will not become clear to us for at least a few more weeks.

Comments

[Mimikatz]

Naturally I concur in most, if not all of this analysis. The fact is that Dobson DID believe he was in control of Frist, and that meant in control of the the Senate Republicans. Bush thought that too. Those have both been disproven.

And then there is the matter of GOP intercine warfare, and who it drives closer to whom. Perhaps it was you who linked to Ed Kilgore's post False Prophets but I read it this am. It explains a lot to those of us whose cast of mind is very different from the religious zealots. Well worth a read.

Time will tell just who has won and who's been left behind, but I'm, modestly hopeful considering how far down we are in power.

[emptywheel]

One interesting point. The one abstention from the cloture vote on Owen? Inouye. Given the agreement, it looks like Chafee and Inouye were thrown on at the last minute to make sure they had 14.

[DHinMI]

Given the agreement, it looks like Chafee and Inouye were thrown on at the last minute to make sure they had 14.

I thought it was really conspicuous that the "gang of 12" became the gang of 14. I tried to figure out why, so naturally I started counting, and realized that if there are 7 in the deal, nobody can be called the deciding vote. This was done by the Dems and McCain to take the heat off DeWine and Graham. And I suspect you're right that it was Chafee who got added to the list.

[DHinMI]

Mimikatz: Mark Schmitt linked to that, but I haven't read it yet. I'll do so now; thanks for the recommendation.

[emptywheel]

Just some more details, because I CAN'T TURN OFF CSPAN.

Specter is looking every bit the Judiciary Chairman, holding hearings to tout the Republican judges. By not voting for the deal, he's going to be able to shepherd these forward.

He was asked about Myers. Said that since the loggers and the ranchers think Myers is a good guy (no, really?? What the fuck about those of us who don't rape the land for a living??). But that he was willing to lose Myers as a least worst outcome.

Then Nelson was up. He said that he would probably vote against one of the three, which seems to support Graham's claim that one of the judges won't pass. I suspect it's NOT Owen (not like any of us thought it was) because Nelson hadn't spoken with the judge yet.

He also said that Myers and Saad MAY get votes on the floor. Which leads me to believe that they are "acceptable" filibusters (particularly if Specter is saying that Myers is out). Which also would support my speculation that extraordinary circumstances are understood to be legally extraordinary (Saad's FBI file and Myers' active investigations).

[DHinMI]

C'mon emptywheel, you don't want it to end this way, do you? Think of your dog, do you want your dog to know you let it happen this way? So why don't you just put down the remote, put it down on the ground, and kick it over to the side. C'mon, give me the remote, and nobody gets hurt...

[emptywheel]

Oh, and ONE MORE detail. Nelson said that he voted against cloture on Saad in the past because he had still not received something he had asked for in order to assess the nomination. It sounded very much like it was his FBI file. Anyway, Nelson said, "I find that an exceptional circumstance, when I didn't have all the materials I needed to vote." I find this very interesting, because it is an EXACT parallel with the Bolton nomination. Particularly since the WH is probably trying to hide stuff just as they tried to hide whatever the black mark is in Saad's file.

[emptywheel]

It didn't work, DHinMI. I'm now thoroughly subject to the will of Senator Byrd, who is hypnotizing me with a parable on the Pardoner's Tale.

Besides, I'm streaming. No remote. Can't bill without being on the computer. Therefore, can't leave the computer.

Addiction is never pretty.

[Mike S]

I think we can make this an even bigger win with spin. I wrote a diary about how the Talk Radio wing of the GOP is reacting. The are livid and are driving their listeners up the wall.

So if we play the reasonable people who are not exactly happy about the deal but are happy we compromised, I think we can win the PR war and grab more moderates. The extremists on the right will show themselves as, well, extreme.

http://www.dailykos.com/story/2005/5/24/161259/945#41

[Meteor Blades]

Well, since last night I, too, have read a metric ton worth of comments and commentary, quite a bit of it put forward by people with a much firmer grasp on issues of this sort than I, including most of the folks here. So I'm hardly in a position to argue effectively.

Almost all of what you've written in this post makes sense to me. Except I can't get over one phrase you wrote that would seem to call everything into question: a chastened Bush administration . Never have these guys accepted chastisement previously, so I am not yet persuaded that they will do so in this case even though the chastisement arrived via members of the GOP.

I shall be most happy to be proved wrong.

[DHinMI]

MB: I hesitated in writing that phrase, but I think it's likely to occur, because--in an admittedly somewhat circular explanation--of the problems I laid out in post. Like I argued, up until know they've never had to worry about the Republicans. About the only time they did was on the Medicare bill, when Hastert and DeLay had to resort to bribing Nick Smith to support the bill. But other than that, they've pretty much gotten everything they asked for from the Republicans. But two things are coming back at them right now, the reluctance--even resistance--of lots of Republicans to carry the administration's water on Social Security, and now this open rebuke to the White House. They gave the marching orders, and all the Republicans followed. But that ain't gonna happen any more. Either they recognize that, which will result in them acting chastened, or they wage war on their own party. I'm sure the Dobsonites favor the later, but I have to believe Rove will opt for the former.

They'll either be chastened or impotent. It's their choice, because short of another terrorist attack, I don't think Bush has enough leverage on the Congressional Repubs anymore; Frist is done, DeLay is besieged, and Bush is quickly becoming a lame duck.

[TenThousandThings]

Does anyone think that this agreement brings appellate court nominees under more scrutiny than ever before? Before this, only supreme court nominees got national attention.

Now that will change, if only because the nuclear showdown is still looming over the Republicans. Bush will give us an "extraordinary" supreme court nominee. You can take that to the bank. He's just too much of a bad-ass to admit the game is over and he and Frist have lost the gambit. Bush should move onto the next game, but he won't. He'll keep trying to win this one, and that means he wants another Bork. Someone to invigorate the right's sense of victimization and maintain the polarized atmosphere that his politics depends on.

[Petey]

"any future use of the filibuster will center not on whether the filibuster is legitimate, but whether it’s a legitimate application of the filibuster"

And filibustering a nominee along the lines of Janice Rogers Brown is no longer legitimate...

"The biggest loser is Bill Frist. He promised something he couldn’t deliver, and his political career is done."

Yesterday, Reid got suckered by a classic good cop / bad cop play. He made a lousy deal with the good cop, and now the lefty blogospheric consensus has become that the bad cop somehow emerges as a loser.

Folks seem to be mesmerized by the kabuki dance to the point that they believe that it was actually in Frist's interests for things to go nuclear.

Before yesterday, I thought Frist was a dead man walking. And after the deal, I think he's now the favorite for the '08 nomination. I hope all my loses take a shape like that.

[Saurav]

So, taken out of the context of this particular political debate, why do you support the filibuster or the disproportionate nature of the Senate? Your arguments on the specifics are pretty compelling, but to an extent they rely on the idea that the filibuster is something worth preserving outside the realm of Bush's court appointments.

Also, why wouldn't obstructionism that turns people against the Federal government for the 2006 election and stops most of President Bush's agenda be more in the Democrats' interests (and more importantly, our's)? I doubt the electorate would distinguish between Democratic and Republican incumbents if they were pissed at the government as a whole for not getting anything done. I think it's more likely that, properly done, obstructionism would generate an anti-incumbent sentiment that would probably help the minority party.

In any case, I hope you're right.