The Deal: I have some good news and some bad news...

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 to accept.

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.

Comments

[Steve]

I think it has become clear in the last few days that constitutionality is not even an issue any more. The right-wing noise machine has stopped talking about it and the Republicans have not even been trying to push the constitutional issue on the floor.

I believe I had a long comment on your "Byrd option" post about this.

[Petey]

"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."

Sure. If Bush nominates someone dramatically to the right of Janice Rogers Brown, (is such a thing even possible?) we'll get to have a grand ol' filibuster.

Or as T.A. Frank lays out in the best short analysis I've seen of the grand compromise:

"if he nominates, say, an Irish setter who, during confirmation hearings, runs up and bites Orrin Hatch in the leg, then Democrats will be allowed to play the bad guys and employ their filibuster."

-----

"Would Democrats have been better off without the deal?"

There are several components to answering this question.

- In terms of the composition of the judiciary:

The Democrats are significantly worse off if they would had won the floor vote on the nuclear option. The Democrats are about even to slightly ahead if they would have lost a floor vote on the nuclear option.

- In terms of the 2006 elections:

The Democrats are significantly worse off no matter if they would have either won or lost a floor vote on the nuclear option.

- In terms of keeping as little legislation as possible from coming out of the 109th Congress:

The Democrats are significantly worse off no matter if they would have either won or lost a floor vote on the nuclear option.

[Petey]

To be fair...

The deal is a good deal if you think the following two things are true:

a) In the event of a philosophically conservative SCOTUS nominee, there will be the will in the Dem caucus to filibuster.

AND

b) The power dynamics of a nuclear option showdown will be more advantageous for the Dems under those circumstances than it was this week.

I don't think those two conditions are true, but if you do, you can certainly make the case that the deal was strategic brilliance.

[Kagro X]

I think it has become clear in the last few days that constitutionality is not even an issue any more.

It disturbs me greatly that Lindsey Graham made a point of saying yesterday, post press conference, that he still believes judicial filibusters are unconstitutional.

He and DeWine were tacked on to this agreement to save what little of it retained any value, but they are not of the same mind as the others, who for reasons of constitutional interpretation or Senate tradition believe that the nuclear option ought to be out of the question (though for various other reasons, I believe some of them would have voted for it anyway).

[teacherken]

I see no discussion of that at which McCain hinted, that at least one of three will not be confirmed on the up or down vote. I would presume that Owens goes through, which does not change the dynamics of that Court. That leaves either Pryor or Brown or both to get voted down. It is interesting in that context that today's Washington Post, On The Merits says that Owen should be confirmed but raises substantive problems about the other two.

[DemFromCT]

I think (and it has been my assumption) that we did not have the votes. Frist didn't either, but by Tuesday he would have rounded them up. Assume that the stroke the R noise machine is having over this, while not the goal of the exercise, is representative of the noise the Frist dissenters would have had to endure.

Assume also, that the stem cell bill will fail in some very visible fashion (why didn't stem cell legislation come first? Duh.) This adds to Petey's point about SCOTUS fights being different (politically) than lower courts and the importance of timing.

Assume also there's at least some side deals we are unaware of. Don't assume, but watch for, the floor votes on the three.

[praktike]

"If Bush nominates someone dramatically to the right of Janice Rogers Brown, (is such a thing even possible?) we'll get to have a grand ol' filibuster."

Dear Lord. Who could be dramatically to the right of Janice Rogers Brown? Milton Friedman?

[DHinMI]

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.

The key point for me. Really, the Dems had almost zero leverage on this, other than to offer a bit of cover under the rubric of Senate tradition, what's best for the country, etc to any dissenting Republicans. That and the threat of bringing work to a grindingly slow pace where almost nothing would get done. Considering how little leverage we had--and considering that in the end we couldn't influence anything without the assistance of over 10% of the Republican caucus--it seems a decent deal to me. Not losing was the goal, and preserving the filibuster to use for a Supreme Court nominee. Launching the nuclear option then, with all the public attention, would be much, much harder for the GOP, and something they probably wouldn't want to do. Procedurally the N.O. may still be on the table, but practically, it's off the table unless the Dems are reckless with the filibuster. Yes, reckless means almost any use of it, but retaining that one for when we need it is better than not having it at all, and Bush realizing that we don't have it.

We're hanging on by our fingernails. This allowed us to hang on a little longer.

[Kagro X]

Procedurally the N.O. may still be on the table, but practically, it's off the table unless the Dems are reckless with the filibuster.

Just as a reminder for those scoring at home, there is no deal, no vote, no law, that can take the nuclear option off the table. That is its nature, and that's what makes it nuclear in the first place.

[DHinMI]

I was speaking in terms of politics and P.R., not that something in writing prohibits it from being launched at some later date.

[emptywheel]

FWIW, I'm still not convinced we would have lost. Even assuming we take Graham and DeWine away (not convinced about DeWine), we still have Specter who was a strong maybe.

I think one of the unknowns about this is why Graham took the leadership role he did. He had the most to lose (like his job, seeing as how he's from the wingnuttiest state in the union). If he did it to amass power of his own, what does he want to do with that power (in addition to coming up with a SS "compromise")?

[DemFromCT]

"what does he want to do with that power?"

All Senators want to be President. Aside from that, the LA Times has a nice piece on why this is still all about Bush.

A polarizing choice, especially for Supreme Court, could unravel the deal, both sides say.

Sounds to me like garham wants some leverage with the WH.

[DHinMI]

In a way, I think Lindsay Graham is his own man. Remember, not only is he from a wingnut state, and not only is his wingnut state where the wingers shived McCain, in that wingnut state Graham was a strong McCain supporter. And while he was a lead "manager" in the impeachment hearings, he didn't vote to impeach Clinton on the Paula Jones stuff. And there's his "Foley" problem, which I name after the Florida Republican Congressman who's always getting sniping from the fundies because of his, um, advanced age and never having been married.

Graham isn't easy to pigeonhole.

[DHinMI]

Sounds to me like Graham wants some leverage with the WH.

He said as much right after the deal was announced when he said something like "maybe now the White House will consult with the Senate in determining who would be a good judge."

[Trapper John]

Again, I second Petey, and I encourage everyone to read that TNR blub that Petey linked to above. It really sums the whoile thing up.

[DemFromCT]

Trapper, Petey's first or second comment? ;-)
(I know you meant the first).

[DHinMI]

Two reactions to the T.A. Frank piece.
My first reaction is that his assessment seems to ignore what DemFromCT pointed out; namely, that Graham (and presumably others) now want to be consulted about appointments. If Bush nominates an Irish Setter, it's unlikely to be as conservative as Janice Rogers Brown. And if they filibuster, the issue will be whether the person is as extreme as she should be to justify a filibuster. I don't know how that wouldn't be a positive for us, to brand a S.C. nominee as so extreme that they had to be filibustered, with massive attention from the country that comes with a S.C. nomination. That's why they wanted to get rid of the filibuster now, because they know they can't do it at the time of a S.C. nomination without looking like they're trying to ram an extremist down everyone's throat.

Second, T.A. Frank is the same stupid fucker who covered some leftist event the week of the innaugaration, and wrote "what a needed was not a Democrat like me who might argue that elections were, in fact, important. What I needed was a Republican like Arnold, who would walk up to him and punch him in the face." He closed out that wise and humane piece of subtle journalism with "sure, the Democrats might be eager to smoke Osama out of his cave. But, sometimes, you just want to be on the side of whoever is more likely to take a bunker-buster to Arundhati Roy."

So, take T.A. Frank's judgment with those comments in mind, because he may claim to be a Democrat, but he's really enthralled with the force, violence and power of the Republicans. He's a wannabe thug, and not much more.

[DHinMI]

Chris Bowers had a good rant about that earlier T.A. Frank piece.

[DHinMI]

T.A. Frank is my current candidate to be TNR's next contribution to the rightwing punditocracy, following in the footsteps of such luminaries as Fred Barnes and Charles Krauthammer.

[jonnybutter]

Graham isn't easy to pigeonhole.

That's for sure. Graham actually acts on principle sometimes, quaint as that may sound or seem. Warner and McCain - for example - had much less to lose and are far more calculating and jellyfish-like (despite McCain's 'straight talk' conceit). Graham has quietly shaped up to be sort of the GOP's Feingold, except that he comes from a less politically volatile state than does Russ, which makes him all the more interesting.

[jonnybutter]

Graham isn't easy to pigeonhole.

That's for sure. Graham actually acts on principle sometimes, quaint as that may sound or seem. Warner and McCain - for example - had much less to lose and are far more calculating and jellyfish-like (despite McCain's 'straight talk' conceit). Graham has quietly shaped up to be sort of the GOP's Feingold, except that he comes from a less politically volatile state than does Russ, which makes him all the more interesting.

[DHinMI]

Fiengold is a good comparison. Generally on one ideological side, and not really a moderate. But every once in a while, he goes against convention.

Good insight.

[praktike]

What do you guys think of this Bullmoose post on the faultlines within the GOP caucus that the Dems can exploit?

[DHinMI]

praktike: I think it's a good point, although I'm not sure the outreach should be at the level of the DNC as much as by Pelosi and especially Reid. I was stunned by the quote DemFromCT posted yesterday by Josten at the Chamber saying nobody in the business community had been consulted by the administration on judicial appointments. Some of the business community, especially those sectors more inclined to support Dems (like tech) and those getting screwed by the Bushies (like heavy manufacturing, especially auto), might be persuaded to really get behind Dem challengers in places where they could make a big difference. I'd love to see big-time support for somebody against Conrad Burns and John Kyl, or at a minium a hands-off approach to the lock-step Repubs, especially Santorum.

I guess that answer was more on the institutional coalition aspect; on the voter/public opinion aspect, I agree with that post that stem cells is a great issue to beat them up on.

[praktike]

Ah, here's Reid, right on target:
"WASHINGTON - Senate Democratic Leader Harry Reid called Wednesday for a swift vote on House-passed legislation to expand federal support of embryonic stem cell research and said President Bush was "wrong politically, morally and scientifically" for opposing the measure. Echoing claims made by House supporters of the legislation, the Nevada Democrat said embryonic stem cell research holds the promise of helping millions afflicted with diabetes, Alzheimer's Disease and other illnesses."

Good point on the car industry. I would love to see the Democrats come out with a big proposal framed as a way to save GM that involved pension and health care reform.

[Meteor Blades]

Whiplash. That's what I keep getting from reading analyses by people who I greatly trust but who disagree so sharply on this affair. I'm not usually unduly influenced by the last person I talk to, but I have found myself the past couple of days nodding my head in agreement while reading an assessment, then nodding again in reading a rip of that assessment. Oy.

That being said, right now I'm pretty much in Petey's and Trapper's camp on this.

But now I'm off to read 20 more analyses, which means my head will probably be spinning like Linda Blair's before the afternoon is over.

[praktike]

Think of it this way, MB. Up until now, the Dems screwed this up. They should have gone to the mat as soon as Hatch started monkeying with the rules. They put themselves into a hole by assuming wrongly that the other side was reasonable and that pointing to the much higher number of Clinton's people that got torched would work. Well, it didn't, and Frist probably had 50 votes anyway. So they did what they had to do, and now they can try to salvage some kind of broader strategic win by encouraging the GOP to defeat itself and, equally important, accelerating Bush's descent into lame duckdom.

[praktike]

btw, think Trent Lott is feeling some satisfaction now?

[DHinMI]

praktike: that's the best succinct assesment of this I've read anywhere.

[Steve]

I don't think the quote the other day meant that business groups had not been consulted with respect to judicial nominations. I took the quote to mean that the business groups simply did not care about the nuclear option fight and wished the Senate would do something else.

[Petey]

"The key point for me. Really, the Dems had almost zero leverage on this"

See, this is the tragedy of the deal for me. As of Monday afternoon, the Dems were holding quite a bit of leverage due to some incredibly bad strategy decisions on the WH/Frist's part. And in agreeing to this deal, they irrevocably pissed all of their leverage away.

By not blinking first, they could have caused a number of different possible outcomes, all of which would have been significantly more positive than this.

1) Reid doesn't blink, the vote comes up on the floor, and the GOP prevails.

In this scenario, the new judges confirmed to the bench at all levels, including the SCOTUS, during this Congress, would not be noticeably different than what it will be under the current agreement.

But under this scenario, the Dems have a political issue to take to the voters in 2006. It creates another Schiavo-type issue that forces down Congressional approval and greatly assists in the creation of an anti-DeLay/Frist wave.

In gumming up the Senate to some degree and enhancing bad partisan feelings, it also has the effect of depressing the legislative output of the 109th Congress, which both helps in creating an anti-incumbent wave for 2006, as well as substantively preventing bad legislation from going onto the books.

Much like how Dems stand to benefit from bipartisan ethics warfare in the House, we stood to benefit from a post-nuclear world in the Senate. The partisan game is always zero-sum. There is no such thing as "everyone loses" in this game.

2) Reid doesn't blink, the vote comes up on the floor, and the Democrats prevail.

Obviously, this scenario results in significant gains on the composition of the judiciary at all levels. And it provides the kind of stress fractures in the GOP coalition that only the naive think come out of the current agreement.

Was it likely for the Dems to prevail? Who knows. We had 49 or 50 votes the day before, and given that it was in the self-interest of Republican moderates to preserve their own fiefdoms of power by voting against Frist, we may have picked up another vote or two.

Given that losing the vote on the floor was preferable to the agreement we got, it was worth trying to win on the floor.

3) Reid doesn't blink, and a compromise is reached on Democratic terms.

This was the scenario I thought was going to actually happen. The terms of this compromise would have been quite similar to the terms of the actual compromise - with a very important difference:

By rejecting cloture for at least Rogers Brown, and perhaps for Owen too, the Dems would have laid down a test case for situations in which the filibuster is appropriate in future cases. Josh Marshall and Mark Schmitt laid out the game theory of this reasoning out quite well in the week before the compromise.

If Rogers Brown is a legitimate use of the filibuster, then so is Michael Luttig, or anyone else who espouses an extreme judicial worldview. On the other hand, if Rogers Brown does not count as 'extraordinary circumstances'...

"it seems a decent deal to me. Not losing was the goal, and preserving the filibuster to use for a Supreme Court nominee."

Of course, it's now a non-usable filibuster.

Not losing was not the goal. The WH and Frist had backed themselves into a very tight corner, and if Reid hadn't blinked, they would've reached on Tuesday the unenviable position of the bluffer whose hand gets called.

"Procedurally the N.O. may still be on the table, but practically, it's off the table unless the Dems are reckless with the filibuster. Yes, reckless means almost any use of it"

Ummmm... Please stop making my points for me.

But if Bush were to nominate an unhousebroken Irish setter...

-----

FWIW, I'm not familiar enough with T.A. Frank to have an opinion on his overall ideological purity. I just thought that particular piece neatly captured the relevant dynamics.

-----

And finally, I see only one possible silver lining out of Reid's insanely bad calculation:

In rescuing Bill Frist right when he was about to fly right off the edge of the cliff, Reid has preserved the viability of a possible GOP '08 nominee who would be a relatively weak general election candidate.

That's pretty piss poor compensation for needlessly losing both judges and 2006 ammunition, but I'm trying to find some bright side out of this fucking debacle.

[DHinMI]

Petey, I think for someone who so often accuses others of being naive or engaging in fanciful thinking, I think you're doing your share of it here. When had DeWine, Graham, Collins or Warner ever stood up to Bush and the Republican base? [Answer: Never] So, that being the case, what makes you think this time they would have gone even further than they did? They're being vilified by their base, and DeWine and Graham aren't darlings of their homestate Dems like Joementum is a darling of CT Repubs. To think it was likely they would have gone further is to ignore the last 4 1/2 years of political history.

As to how often the filibuster can be used, almost never is a hell of a lot better than never. Would you rather have only one bullet in your gun and have your opponent know it, or none and have your opponent know that?

And your talk about bluffing implies that the decision was made by Reid. It wasn't. It was made by the 7 Republicans. It was imposed on both sides by the Republicans who wanted to keep the filibuster but didn't want to vote against the nuclear option. To not see this as Warner, Collins, DeWine and Graham taking the path of least resistance to keep what they wanted is to miss what I believe was the essence of the deal. For them, the primary goal was to avoid a vote. For the Dems, the primary goal was to preseve the filibuster so it can be kept in reserve for a SC nomination. And for the Repub leadership and WH, it was to eliminate the filibuster. Thus, the seven Repubs got what they wanted, the Dems got what they needed, and the Repub leadership got nothing they couldn't have gotten had it gone to a vote, but failed to get their ultimate goal.

[Petey]

And if you don't like T.A. Frank, check out Charles Pierce's piece instead. No Mimes on the Federal Bench!

[Kagro X]

It's not Reid's blink. While there were surely discussions between the Democratic contingent and the leadership, I'm not convinced at all that there was real approval ahead of time.

What the deal's aftermath illustrates most clearly is how the differing leadership styles of Reid and Frist can allow one to appear as though he has retained control of his caucus throughout the process, and another to appear he's been chumped.

I also have a lower opinion of the power of the electoral issues created by a no blink/floor loss combination. Great on paper, typically worthless in execution.

[Petey]

"And your talk about bluffing implies that the decision was made by Reid. It wasn't."

I strongly disagree.

Reid vetoed a very similar agreement exactly one week ago, and had the allegiance of the Democratic negotiators on Monday evening. It was Reid's choice whether to blink first in this game of brinksmanship or not, and he made the wrong choice.

"When had DeWine, Graham, Collins or Warner ever stood up to Bush and the Republican base? [Answer: Never] So, that being the case, what makes you think this time they would have gone even further than they did?"

As to why this would be different than other votes where the moderates head back to leadership... In this case, they had two sources of self-interest in defying leadership:

- They didn't want to blow up the Senate, both for their workplace sanity, as well as for preserving their majority status.

- They didn't want to weaken the Senate rules that provide much greater power to moderates than is true in a House type environment.

But like I said, losing a floor vote would not have been much worse substantively than this compromise, and it would have been much better politically. So you force the GOP moderates to make a choice, and live with the results. In the end, this probably gives you a compromise on Democratic terms.

And I'll add that the universe of possible 51st votes was larger than just Graham and DeWine.

"And for the Repub leadership and WH, it was to eliminate the filibuster."

Again, I strongly disagree.

The WH/Frist strategy was cribbed from the late 70's occasion where Robert Byrd threatened the nuclear option to get the minority to accept a compromise on his terms. The WH and Frist didn't want to eliminate the filibuster for numerous reasons - they wanted Harry Reid to blink. And they got their wish.

[praktike]

"When had DeWine, Graham, Collins or Warner ever stood up to Bush and the Republican base? [Answer: Never]"

Dunno about DeWine, but the latter three were pretty good on Abu Ghraib.

[Kagro X]

See, this is how this stuff happens. You get people on the same side who see things differently. And when crunch time comes, you stick to your guns, and if you can get six people with you, you get to blink, not blink, cut the deals, and what have you.

But afterwards, nobody would say you agreed to what the other group was doing if you ended up with the short end of the stick.

That's caucus politics for you. It seems perfectly clear to me that it's a reasonable assumption that Reid simply took his unified caucus as far as it would go, and when the center of gravity shifted, he went with it, hoping to project a winning image. Frist wouldn't or couldn't do that. So, fine.

[Petey]

Kagro,

I was not in the room with the Group of 14, but my understanding is that a majority of the Democratic negotiators were working directly for Reid.

Would the Democratic negotiators have defied a Reid veto on Monday evening? Or more to the point, were they acting independently of Reid? Like I say, I wasn't in the room. But that's certainly not my understanding of the dynamics.

[DHinMI]

Frist probably had 50 votes anyway. So they did what they had to do, and now they can try to salvage some kind of broader strategic win by encouraging the GOP to defeat itself and, equally important, accelerating Bush's descent into lame duckdom.

Posted by: praktike | May 25, 2005 03:17 PM

It seems perfectly clear to me that it's a reasonable assumption that Reid simply took his unified caucus as far as it would go, and when the center of gravity shifted, he went with it, hoping to project a winning image. Frist wouldn't or couldn't do that. So, fine.

Posted by: Kagro X | May 25, 2005 04:27 PM

Just want to highlight those two comments, because I think they sum things up nicely.

[DHinMI]

Petey: The seven Repubs staked out their two options. This was option 1, offered to Reid, most likely with disclosure that option two, at least by some of them, was to vote for the N.O. on the floor. I don't know why you keep coming up with the idea that Reid "blinked" first; I think it's reasonably clear that things had reached the end, the options were laid out, and it was one or the other. Reid wasn't getting anywhere with Frist, but he got something from the seven. But that's all they would give him, and if he didn't take it, then they would go with Frist.

I think you're overthinking this, imagining there were unused moves and options that didn't exist.

[Petey]

"The seven Repubs staked out their two options. This was option 1, offered to Reid, most likely with disclosure that option two, at least by some of them, was to vote for the N.O. on the floor."

This is how the game of chicken is played. Who is willing to actually drive off the cliff?

Have you ever bought a car? This is my last, best offer...

"I think you're overthinking this, imagining there were unused moves and options that didn't exist."

The move is to refuse Option #1. Then one of a number of different things happen:

- The seven Repubs come back with Option #3 on Monday night/Tuesday morning.
- The vote is thrown into limbo via RonK's method on Tuesday, and Option #3 is introduced.
- We find out the seven Repubs were bluffing on Tuesday when Frist doesn't get his 50.
- We find out the seven Repubs weren't bluffing on Tuesday when Frist does get his 50.

All four of those things are preferable to what we got - which is the ability to not filibuster any SCOTUS nominee Bush might offer. If we're going to get Chief Justice Luttig anyway, there are very real advantages to letting the Republicans blow up the chamber. And once you're willing to walk away from a bad deal, some interesting things can happen...

And the frustrating thing about all of this is that Reid seemed to previously understand the underlying logic. That's why he vetoed the identical deal a week ago.

[Mimikatz]

I think the fact that the deal happened indicates that Reid sensed that if it came to a vote, he was not going to have more than 49 votes. DeWine has said he would have voted for the N.O. Specter was quoted in The Hill as saying that too. Graham would have voted for it. So how do we get more than McCain, Chafee, Snowe and probably Collins? And everyone said Warner wouldn't be the 6th vote. So who was no. 5? Reid didn't have it. Period.

DH is right, I also think, that for the R's that signed, the most unthinkable thing was having to face that vote. Why? Because too many of them knew that for whatever reason they would end up voting with Frist. End up doing what they knew was wrong but not having the stomach to do what was right, or doing what they knew wasn't so much wrong as would probably have a very bad outcome in the future.

It is hard for us to think the way these R's think. Reid obviously is in a better position to do that, and I think he really saw that if push came to shove, he wouldn't have that last vote.

Of course we are going to face this again if/when Bush nominates someone to the Supreme Court, and that is a much better time to force the issue. It is more public, and by nature a Supreme Court nomination is an extraordinary circumstance, particularly if Bush doesn't consult with Dems (unlikely) or does another poke-in-the-eye nomination. I think that was the point of the deal for the 7 R's--to try to get Bush/Frist not to put them through this again.

It will also be much more interesting if the fight comes after Brownback or Santorum lead a filibuster against the stem cell bill.

And as for side deals, the casualty no longer looks like Brown but Haynes or whatever his name is, the Defense Dept guy who took the JAG officers off the Gitmo interrogation panels and angered Lindsay Graham, maybe Kavanaugh as well. More's the pity. JR Brown may come back to embarrass some of the Senators.

[DHinMI]

This is how the game of chicken is played. Who is willing to actually drive off the cliff?

Frist and the White House, of course. But if the seven Repubs thought Reid was willing to drive over the cliff in the Dems' Ford Focus, they were going to play the odds and go over the cliff in the Repubs' Ford Navigator.

- The seven Repubs come back with Option #3 on Monday night/Tuesday morning.

Do you think that Byrd and Reid don't know when Warner (or Specter, or McCain) was telling them what is his bottom line? When you've served in the Senate with somebody for twenty or thirty years, you get a pretty good idea of when he's still pondering and when he's made up his mind. Levin was working Warner, and my guess is that everyone knew what Warner was and wasn't willing to do, and how to assess his offers. If he said "this is what we'll do, and this is what we won't do," there probably wasn't much need to wonder what he may have meant. I'm sure everyone knew.

- The vote is thrown into limbo via RonK's method on Tuesday, and Option #3 is introduced.

If that's what they wanted, they wouldn't have made the offer; they didn't need the Democrats for this. If they really wanted that, they wouldn't have made an offer, made sure the vote was taken, and then spring it on everyone. Clearly that's not what they desired.

- We find out the seven Repubs were bluffing on Tuesday when Frist doesn't get his 50.

See previous comment about working with somebody for thirty years.

- We find out the seven Repubs weren't bluffing on Tuesday when Frist does get his 50.

The only alternative, by Monday night, to agreeing to the seven Repubs' offer. You think the last one is preferable, but you're not going to convince me of some ephemeral advantage to losing something that Bush and the Republicans are really, really fucking pissed they didn't get would have been a positive for us.

Contriariansim is fun sometimes, but on that last point, I don't see anything else backing it up except contrarianism.

[DHinMI]

It is hard for us to think the way these R's think. Reid obviously is in a better position to do that, and I think he really saw that if push came to shove, he wouldn't have that last vote.

Exactly. We're only dealing with 100 people here, and really only about 10 of the 55 Repubs were probably ever close to being in play. These folks have worked together for years a years and years, and these negotiations were based on personal knowledge and relationships and understanding of each others character and motivations as much as anything else. We don't know from the outside how "serious" McCain or Warner or Graham or the others really were, but I'll bet some of the Dems did, and that's probably why they took the deal.

[praktike]

"You think the last one is preferable, but you're not going to convince me of some ephemeral advantage to losing something that Bush and the Republicans are really, really fucking pissed they didn't get would have been a positive for us."

Nor me. This would have been painted in the media as a great triumph for Dear Leader, and he would have used it to push through God Knows What.

[Petey]

"You think the last one is preferable, but you're not going to convince me of some ephemeral advantage to losing something that Bush and the Republicans are really, really fucking pissed they didn't get would have been a positive for us."

This is indeed the heart of the matter.

If you think any deal is significantly preferable to Frist winning 50-50 with Cheney casting the tie-breaker, then you blink first and make the deal no matter how bad it might be.

I think the deal is only slightly preferable on judicial confirmations, and significantly worse on the politics, so I didn't want to blink. I think the other side had gotten themselves into a position where they didn't want to go forward, so I didn't want to blink, And I think there were much stronger pressures on the moderates to vote against leadership than you do, so I wanted to keep staring and see just how steely the other side's nerves really were in the moment of truth.

-----

Given the nature of the endgame, the Kennedy/Daschle filibuster strategy was a mistake from the beginning. If we weren't going to play it out to the end, we never should have started it.

I'm normally quite supporting of the leadership, but this has been a major debacle.

And my previously high optimism about 2006 has been greatly dampened.

[DHinMI]

And my previously high optimism about 2006 has been greatly dampened.

Why, you think this had any effect on voter opinions for next November? I think it was incredibly important, but other than at the bases it had little effect on voter consciousness. That's what scared me so damn much about it, and it's exactly why the Repubs wanted to ditch the filibuster now, because they knew that it would be so much easier now than under the glare of attention that comes with a SCOTUS nomination. That's why they had to do it ahead of time, because they can't be seen as changing the rules when everyone is watching, especially after they chose not to this time.

This has been dangerous (if you think we needed to keep the filibuster, which you claimed we didn't), but I don't see the danger associated with voter opinion.

If anything, the Repubs face greater danger from the filibuster if they use it to block the stem cell bill.

[Mimikatz]

Exactly. Much worse for the R's to have this drama play out after Bush has nominated a far right zealot to the SC without consulting either the Dems or a broad group of R's and after the far right has used the filibuster on something popular like stem cell research. Far worse for them to be seen as changing the rules in the middle of a very public fight. People will remember other Supreme Court nominees being withdrawn as too extreme or too something. And as I said, If Bush does another poke-in-the-eye appointment without at the very least consulting a range of R's, then Graham and several others may well see it as an extraordinary circumstance. In short, the vote on the NO is what they don't want to have to make, and they will not be happy if Bush picks a nominee that puts them right back there again.

[kainah]

If Rogers Brown is a legitimate use of the filibuster, then so is Michael Luttig, or anyone else who espouses an extreme judicial worldview. On the other hand, if Rogers Brown does not count as 'extraordinary circumstances'...

I think it is still very easy to argue that Owen, Brown and Pryor all cross the line of what is ordinary. After all, it took this most extraordinary deal to get them their vote. I see no reason why they can't be argued as the epitome of the extraordinary standard.

[DHinMI]

Mimikatz, somewhat o/t, but I remember from past threads at DKos you mentioning that you practiced as an attorney. Did you ever do appellate work?

[DHinMI]

kainah, good point. And they're extreme as appellate judges, with few people paying attention. If they were under the spotlight that attends to SC nominees, it would be very easy to convince the public that their nomination was indeed an extraordinary circumstance.

[Petey]

"Why, you think this had any effect on voter opinions for next November?"

If the Democrats are expecting to surf the kind of wave necessary to challenge for actually winning the House and/or Senate in 2006, the themes are:

- Ethics
- Overreach
- Changing the rules
- Violating the norms
- Drunk on power
- Inmates in charge of the asylum

And another half dozen variants of the grand theme of Them Republicans is goin' too far or The Mess in Washington.

Simply put, you don't want to explode the Senate when you're the incumbent party. There is no profit in it.

This is why the goal for the WH/Frist was to make Reid blink, not to actually win the vote. (Ted Stevens, the father of the nuclear option, has been talking for the past year about Byrd's similar maneuver in the 70's. The whole game is brinksmanship, not actually going nuclear.)

-----

"if you think we needed to keep the filibuster, which you claimed we didn't"

I'm most definitely in favor of eliminating the filibuster for all Senate business over the long-term. In the short-term, I would've been very happy to see the filibuster survive via the Dems winning a N.O. floor vote. I would've been very happy to see the filibuster survive via a compromise that set the bar for future filibusters on the other side of Janice Rogers Brown.

(And on the tangential topic of why we should be in favor of weakening the filibuster and the Senate over the long-term, Yglesias had a nice piece today.)

[radish]

And on the tangential topic of why we should be in favor of weakening the filibuster...

Nononononono!! (Sorry. Can't comment over there.) "Graveyard of progressive reform" is just the glass-half-empty way of looking at it. Being the world's worst lawmaking body is the purpose of the Senate, dammit. The Senate was designed with the modern GOP in mind! It's a major part of the checks and balances system which is supposed to prevent a single faction from controlling all the levers. Slow progress is the price you pay for discouraging tyranny.

Matt says in so many words that "the weirdness and slow pace of the Senate is a good thing for the moment, because the president and the House majority have terrible ideas" and he still wants to change it? Is that because the modern GOP represents the very last time a group of elected officials will go mad with power? Fer cryin' out loud, making the Senate a streamlined, majoritarian body is like going into Iraq expecting to be greeted with flowers. "Petty corruption, special-interest control, shakedowns, and, at best, pointless grandstanding" are the lesser evils that forestall greater ones. Matt wants universal health care, but overlooks the fact that with the kind of Senate he envisions Social Security would already be a piece of history.

[DHinMI]

Fer cryin' out loud, making the Senate a streamlined, majoritarian body is like going into Iraq expecting to be greeted with flowers.

The problem with the idea of getting rid of the filibuster is that it sets up a situation where you have the worst combination of parliamentary and non-parliamentary democracy. When you have one party controlling the House, Senate and WH they can, like a parliamentary majority, do pretty much whatever they want. However, unlike when one parliamentary majority is replaced by another so the previous government's actions can be undone, in this case it could take decades to undo something done during those rare times you have a unifed bloc in the House, Senate and WH.

[mds]

I see no reason why they can't be argued as the epitome of the extraordinary standard.

Well, three reasons are named Graham, DeWine, and Warner. All three of them have made it clear that they'll agree to go nuclear if they decide that the Democrats aren't living up to the bargain. Senator Graham came right out and said that this makes it clear that Owen, Pryor, and Brown are not out of the mainstream. So the line has been irreversibly shifted again. But don't worry, if Brown is nominated for a Supreme Court vacancy, then people will "pay attention." Pay attention as Republicans point out repeatedly that Democrats agreed to an up-or-down vote before. But since it will be under the spotlight, we can stop her the way we stopped the "originalist," Mr. Long Dong Silver himself, Clarence Thomas. Oh, wait, we didn't. But it was different back then, because, uh, Democrats controlled the Senate.

Sheesh. I'm with Petey. No, Reid probably didn't have the votes. So what? Let them get everything they want over furious Democratic objections, instead of by Democratic capitulation, and use the Republicans' misdeeds to regain power. If Democrats don't vigorously fight for principles and distinguish themselves from Republicans, then it won't matter what privileges our permanent minority is oh-so-graciously granted by the Republicans.

[Kagro X]

Just out of curiousity, how would the most strident deal opponents here have moved fellow caucus members to their position?

We all certainly appreciate the boldness, and I might even have been inclined to entertain thoughts of playing the whole thing out. But if I were sitting at the head of the table, hearing from two distinct subsets of the caucus, each with dire warnings of the consequences of listening to the other group, but all ultimately based on speculation, I'm not sure how I would have played things differently than Reid has and still have gotten the post-game positioning he's come away with.

I've heard nothing that completely convinces me that the Democrats among the 14 were working for Reid, as opposed to consulting closely with him, which, at minimum, had to be the case. But it seems to me that if they were Reid's agents here, then if we knew it, so did the Republicans. That would be a pretty good explanation for their hard line: no deals on Owen, Brown or Pryor, and no declaratory judgment on the constitutionality of the filibuster. There's really no good reason for this group of seven to go to the mat for Brown. But if I were them and I found out that the other seven were working for Reid, I'd have extracted that extra pound of flesh.

And I'd like to credit Reid with the smarts to know that they'd do that. And further with the smarts not to let that happen.

Sometimes your caucus gets ahead of you. And it's always a matter of having to hold one faction back at the expense of another. Reid made the only choice he could. Going with the fighters at the expense of the compromisers leaves him out in the cold with Frist. Going with the compromisers at the expense of the fighters leaves the fighters with the option of dumping him just when he looks (to others, perhaps) like he might have won something.

I'm not so sure that comes out all that well in '06. Do voters see a lineup of newly invigorated Congressional Democrats ready to fight for progressive values against an overreaching GOP? Or do they see two parties painted into corners and driven by ideologues more inclined to kick and spit than get the job done?

Coin toss. Go with the one that's less likely to get you kicked out of your leadership post (the Dem fighters weren't gonna challenge this call openly). Especially if the same deal could possibly get the other guy kicked out of his leadership post.

[DHinMI]

That comment is worthy of a stand-alone post.

[mds]

Just out of curiousity, how would the most strident deal opponents here have moved fellow caucus members to their position?

How does a party leader in the Senate ever accomplish that? That's the standard by which a leader is measured. Just out of curiosity, how are we strident deal opponents here supposed to know what the carrots and sticks are? If Senator Reid thought this wasn't the deal to make, but couldn't keep the caucus together on it, we're screwed on Social Security.

I'm not so sure that comes out all that well in '06. Do voters see a lineup of newly invigorated Congressional Democrats ready to fight for progressive values against an overreaching GOP? Or do they see two parties painted into corners and driven by ideologues more inclined to kick and spit than get the job done?

What job is that? Consenting to all of the President's nominees? Cutting Social Security benefits? Some recent polls have shown, if I recall, that being a real opposition party was not a bad thing. But thanks to "compromise," we have this from the Washington Post:

Under the pact, a filibuster of a Supreme Court nominee will be "almost impossible," Frist said. Sen. Lindsey O. Graham (R-S.C.), one of the 14 negotiators, agreed. "If there's a filibuster for a Supreme Court nominee in the future, where one of the seven Democrats who signed the letter participates [in the filibuster], all bets are off," he said in an interview.

This seems to indicate that Senate Democrats got absolutely nothing out of this except Owen, Brown, and Pryor sitting on the federal bench for life, plus a new threat to go nuclear if any Supreme Court nominees are the target of a filibuster. So condolences to Reid, if this deal was cut despite him, and congratulations to him if he was pushing it, since he can now be prince of nothing.

At this point, with the buzz that Frist will move for cloture on Myers, I'm not sure I'd be surprised if Republicans paint an attempt to filibuster Myers as reneging on the deal. The "he said / she said" media will spin it as a disagreement over the details of the deal, and the text of the agreement will matter as much as the text of the Downing Street memo. Senate Democrats will protest the unfairness, but they'll apparently just be ideologues more inclined to kick and spit than get the job done.

[Kagro X]

What job? Any job. If this is about how the deal or lack of it would have played in '06, holding out for a definition of "the job" is a luxury you can't afford. If voters were that demanding of specifics, none of this would ever be a problem. You know as well as I do that the conventional wisdom on this is going to swing one of two ways: these guys can't work together, or they can. What they actually do hardly matters in that calculus.

Yes, the ability of the leadership to move caucus members to their position is in fact the very definition of the term. What needs defining here is the "position" part. Reid's job here is not necessarily to be mapping out substantive positions that he wants caucus members to take, but rather to be convincing caucus members to adopt a posture that will give rise to the best possible deal -- on the nuclear option, on Social Security, on anything. 99% of the leadership job is actually listening, as opposed to dictating. Reid's task, then, was to make it possible for the Democrats to deal as effectively as possible from over a barrel. The fact that his caucus included significant numbers of members who are typically inclined to let the president have his nominations means that his ability to hold them together over the past few weeks while things played out is all the more remarkable. The same caucus dynamics, minus the leadership, results in either no deal and an eviscerated filibuster, or a deal early on that generates zero media notice of the dismantling of minority rights.

Come up with any carrots and sticks you care to imagine. Let's game it out. What do you have in mind that you think would have convinced this group of seven and their sympathizers that a fight to the death was the better course, and that would have left Reid still at the helm when all was said and done?

We may indeed be screwed on Social Security, but only if the same calculus applies in the minds of compromise-minded Democrats, which I think is unlikely. As part of our wargame, remember that you're dealing with Senators who are presumably experts in their states' politics. They may very well know that their electorate feels much differently about a compromise on rules of Senate procedure than they do about compromises on a program that puts a check in their mailbox every month.

Caucuses are hard things to keep unanimous. They just are. They stick together out of institutional inertia, but there are always strays, and always members looking to game some angle or another. Being a caucus leader doesn't put you on a pedestal. What you're standing on is your colleagues' shoulders, and they are always conscious of that. Should you lose sight of that, they will remind you of it. Sometimes they only keep you in the leadership for fear of how it would look to dump you for crossing them.

As for Frist's move on Myers, that has to be expected. I'm shocked that anyone's shocked. For one thing, Frist is not a party to this deal, and he owes his masters a cloture vote at minimum, and possibly a nuclear option vote to boot. But anyone who thought he wouldn't probe to find the real meaning of "no commitment to vote for or against cloture" on Myers just hasn't been paying attention. After all, does anyone actually know what it does mean, in practical terms? Now, it's true that a real leader would simply ask where Senators were on this, but if Frist were doing that, he would have been playing these negotiations and the post-deal spin the way Reid did. Instead, it seems very clear that the Republican negotiators were working outside of the leadership's sphere of influence, while on the Democratic side that's still an open question.

And when that Myers vote comes, I have very little doubt that the Republican signatories will stick by their word. Unfortunately, that word doesn't tell us which way they'll vote on cloture. I'm not at all sure a Republican attempting to paint Democratic opposition to cloture as a breach of the deal will get serious consideration from the media. The terms are in black and white. Not that there won't be some who'll try anyway, but it won't fly.

[Petey]

"I've heard nothing that completely convinces me that the Democrats among the 14 were working for Reid, as opposed to consulting closely with him"

Well, there were some very big hints in the past week:

1) It was widely reported that Reid vetoed the deal the Group reached last week.

2) The fact that Bob Byrd was the lead Democratic negotiator should mean something. Byrd is an old leadership hand, and his loyalty to leadership is never in question in these types of matters.

3) Reid was widely reported as being involved in the drafting and rewording of the actual text.

Beyond these, I don't know what to tell you, other than if the Democratic negotiators weren't operating as Reid's agents, everything I know about politics is wrong.

"But it seems to me that if they were Reid's agents here, then if we knew it, so did the Republicans."

No doubt. I believe everyone was aware of this, and I don't believe anyone was particularly concerned with disguising it.

The only mystery to those watching seemed to be whether or not Graham and DeWine were directly working for Frist or not. But given the fact that Frist needed plausible deniability on any deal for the sake of the wingnuts, the reasons why that was a mystery are no mystery.

-----

At the end of the day, the decision on whether to surrender or stand firm on the three year old Kennedy/Daschle filibuster strategy was Reid's. He made his decision and surrendered. I think that was a major strategic mistake. Others think it was the right decision. But I don't think there is much doubt that it was Reid's call.

[Meteor Blades]

OK. I've read analyses all over the blogosphere on this subject today. I suppose it's not surprise to you all that the best discussion going on is right here.

[Kagro X]

All good points from Petey, but we're going around in the same circle here. I read the same clues differently, and would likely vote for a different conclusion. Which leaves us right back at the same meta-junction: a decision has to be made between two perfectly plausible alternatives.

Widely reported that Reid vetoed the deal last week? Why not consider it evidence that he wasn't firmly in the driver's seat? If he was, he'd have vetoed it again. Something had to have changed between now and then. If it wasn't the deal, it must have been Reid's perspective on what rejecting it meant.

Byrd was the lead negotiator and is an old hand whose loyalty to the leadership is unquestioned? That explains Reid's change of heart. "Harry, you know where I stand on loyalty to leadership, but you also know I've been through this very same wringer before. Trust me when I tell you..."

Reid involved in the drafting and rewriting of text? "Folks, I have no doubts about your loyalty here, and there's no way to adequately express my gratitude for your unity and support to this point. But I also labor under no illusions about what it means when 1/6 of my caucus is actively involved in these negotiations. It means that at least 1/3 of my caucus is probably sympathetic to whats happening but can't be in the room. So here's the deal: All I ask is that you keep me in the loop, because I think Frist is going to stay out of it, and I think that'll make him look like he had the rug pulled out from under him, and we can't afford that on our side. So I'm gonna need to insist that attention be paid to some minimum basic requirements that the other 2/3 of the caucus will accept, but after that..."

At the end of the day, the decision on whether to surrender or stand firm on the three year old Kennedy/Daschle filibuster strategy was Reid's. He made his decision and surrendered. I think that was a major strategic mistake. Others think it was the right decision. But I don't think there is much doubt that it was Reid's call.

And I see it this way: the decision on whether or not to surrender and look like he was in the loop or stand firm and look like Frist was Reid's. I don't doubt that it was Reid's call, but I have my doubts about what his options were.

[mds]

And I see it this way: the decision on whether or not to surrender and look like he was in the loop or stand firm and look like Frist was Reid's. I don't doubt that it was Reid's call, but I have my doubts about what his options were.

Okay, I'm willing to concede that Senator Reid probably made the most of the craptacular situation he found himself in. For thinking on his feet, and getting on board with the spin, he gets kudos. So we're left with the fact that it was a bad deal, brought about by some Senate Democrats breaking ranks. But at least:

(1) Owen, Pryor, and Brown get lifetime appointments,

(2) Democrats might be permitted to sustain a filibuster of Myers,

(3) and, most importantly, Democrats retain the right to filibuster, which would come in handy for the Supreme Court, had Senator Graham not said that any filibuster of a SC nominee would break the agreement.

So they'll eliminate the filibuster sometime anyway, but the optics will be better for Democrats when they finally do. I guess.

[Kagro X]

Done.

[Petey]

Kagro,

Given your skill in finding plausible alternatives to the points one by one, you should be an attorney.

Without having transcripts of what went on behind closed doors, I can't prove beyond a reasonable doubt that the Democratic negotiators were acting as agents of the leadership.

I dunno what to tell you other than that you've got the gist of it wrong.

-----

mds,

"So they'll eliminate the filibuster sometime anyway, but the optics will be better for Democrats when they finally do. I guess."

If you believe this, then the deal was a good deal. I don't see the cards falling that way, so I think it was a lousy deal.

[chv]

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