Endnotes on the Nuclear Option

by Kagro X

So, how long will we have to wait to test the durability of the 7+7 Compromise? Well, what's your June looking like?

The White House is preparing to send a raft of new judicial nominations to the Senate in the next few weeks, according to Republican strategists inside and outside the administration -- a move that could challenge the durability of last week's bipartisan filibuster deal and reignite the political warfare it was intended to halt.

The Bush administration has been vetting candidates for 30 more federal district and appeals court vacancies that have been left open for months while the Senate battled over previous nominations stalled by Democrats. Now that Democrats have agreed not to filibuster any new candidates except in "extraordinary circumstances," Republicans are eager to test the proposition.

Nature abhors a vacuum, and the Bush administration abhors a truce. Not coincidentally, many people think that vacuums and the Bush administration both suck.

So, why now? You weren't thinking of giving the administration the benefit of the doubt, were you? That perhaps the timing was a coincidence?

"Republicans feel this is a good moment to move forward with judicial nominations," said Sean Rushton, executive director of the Committee for Justice, a group formed by C. Boyden Gray, who was White House counsel under President Bush's father, to support the current president's judicial appointments. "It's time to move on and also to get past the Clinton period" when Democrats salted the federal judiciary with more liberal appointments.

Rushton said he expects "a large swath" of nominations in the next few weeks unless Chief Justice William H. Rehnquist or another Supreme Court justice decides to step down at the end of the term later this month, an event that would throw current plans out the window. Administration and congressional officials, who spoke on the condition of anonymity because no announcement has been made, said they, too, expect a flurry of lower-court nominations within weeks. "There's about 20 waiting in the wings," a Senate Republican official said.

Twenty waiting in the wings. Twenty that could no doubt have been added to the total that Republican drama queens would have relished claiming were held up in an "unprecedented" use of the filibuster. But they never got that chance, because the Bush administration wanted to hide the ball and see how the nuclear option gambit turned out.

You can't blame them for trying, of course. Even if these judges hadn't been waiting in the wings, the next logical step for Republicans is to try to test the resolve of the 14 with new and crazier nominations, possibly including barnyard animals and Marvel Comics superheroes.

So while the GOP will undoubtedly be pressing their claim that the deal's greasing-of-the-skids for Owen, Brown and Pryor "sets the bar" for "extraordinary circumstances" (it doesn't), perhaps its time to wonder instead where the bar now sits in terms of how long a controversial nominee might expect to wait for a floor vote. Republicans, it seems, are willing to claim that Priscilla Owen makes a logical yardstick for crazy, but they'll undoubtedly scream bloody murder if the next round of nominees are held up even half the time she was.

Not that Democrats have tools to do so, other than the "filibuster," as they did before Orrin Hatch snatched them away and stuffed them in his mattress. I put filibuster in quotes because Republicans of late have cast doubt on what the word means. Opposing cloture on Paez, we learned from Bill Frist himself, doesn't count... because he ultimately lost that vote. I don't suppose we'll be given the same consideration, though. Any votes against cloture, even by the one of the 37 Democrats not bound by the deal, will immediately be painted as a filibuster whether it suceeds or not, not to mention a "violation" of the agreement.

So it seems the next battle will come close on the heels of the last. And this will be where the first shots are fired:

Republicans have said the agreement means that no future nominees could be filibustered for being as conservative as the three covered by the deal. It "sets the definition of extraordinary circumstances that the president can meet quite easily," Gray said. Democrats have disputed that interpretation.

Democrats have disputed that interpretation, but not loudly or often enough. Nor have they made a big enough deal of the fact that the Republicans who say this are not party to the deal, and therefore can be fairly expected to have even less of an idea of what its terms mean than those who were party to it -- and they have kept themselves in the dark by design.

The deal gives a free pass -- a special dispensation, really -- to Brown, Owen and Pryor. And arguably to Saad and Myers as well. That is, part one of the agreement, which deals with these five, makes no determination on whether or not they represent the "extraordinary circumstances" outlined in part two. The "extraordinary cirucmstances" calculus, whatever it may be, applies only to future nominees. It's right there in black and white -- the "original text," some might say. It's a new test, inapplicable to any of the named judges. And it behooves the Democratic Seven to come out and say so. Besides which, non-signatory Democrats should remind everyone that they're not bound by the agreement in any case, and they're still free to ring the crazy bell when a true loon comes along, as will inevitably be the case.

Comments

[RonK, Seattle]

Some of this "raft" of nominations may have been anchored offshore waiting to see what the market would bear, and how close the customs inspectors were looking under the tarps.

Others may have been withheld to manipulate the market, creating artificial scarcity.

Recall in the Nuclear run-up, Reid offered immediate action on 3 or 4 of the "obstructed" nominations ... and the GOP staved off Reid's effort to square the tally.

Hatch buckled down to keep his statistical load of fertilizer uncontaminated by gift-ponies. "65% confirmation of Bush appellate nominations"? Wouldn't want that bumped up any, either by voting on Reid's free passes, or releasing any fast-track choices. Wouldn't want to bump the Dem's "95% confirmed" up to 96 or 97. Wouldn't want the "judicial emergency" vacancy rate ground down in advance of the Nuke Option debate, would we?

Anyway, we'll see soon enough what the judge-mongers have in store. Pull that raft up to the dock, spring those Hatch-covers, and we'll know by the smell.

[Meteor Blades]

OK, RonK, what do you recommend for getting the orange juice out of the interstices of my keyboard?

I think they've been keeping this pack of nominees somewhere in a freezer, rather than offshore below decks - do rafts have decks? - given that most of them seem to be Originalists not as regards the Constitution but based on pre-Enlightenment sources. We're going to be reduced to searching for the tiniest hope that this nominee is better than that one because s/he once half-disagreed with Justice Scalia on whether the Third German Reich was a product of separation of church and state. If the Democrats behaved the way I would like, "Extraordinary Circumstances" would be a rubberstamp on the desk of every Senator on the left side of the aisle. Fat chance.

[Kagro X]

I'll tell you one thing, MB, it'd be really interesting to see what the Republican seven do if every one of the Democratic seven (or even six of the seven) together agree that some nomination in the future represents extraordinary circumstances.

The natural inclination for the 48 other Republicans, of course, will be to say that this is a clear violation of the agreement. But after all that talk about deep trust, soul searching and whatnot, some of the Republican seven -- about three of them, probably -- are going to have a difficult time explaining why the unanimous agreement of their seven trusted brethren (and, uh, sis..tren?) isn't in itself an extraordinary circumstance.

[Dramatic pause.]

But then everyone will wake up from the dream and call each other fascists and blow the whole place up like we knew they were going to in the first place. U-S-A! U-S-A! U-S-A!

[Mimikatz]

Wasn't one of the things that might make an "extraordinary circumstance" the failure of BushCo to consult on nominees? Certainly with respect to Supreme Court nominees.

And just where does this all fit into the June schedule among the votes on the budget and tax cuts, dealing with the Iran attack or pretend attack and concomtant continued high gasoline prices, and the continuing deterioration in the economic numbers?

Talk about overextending your forces . . . .

[al-Fubar]

Let's get specific. "Extraordinary circumstances" means whatever Lindsey Graham and Mike DeWine think it means. (And maybe one more of the GOP seven - but most of the others are bluish-state moderates.)

I don't know much about DeWine. Graham seemed like a nutcase during the impeachment, but he occasionally strays off the reservation in odd ways. The one thing we know for sure about the GOP seven, though, is that none of them WANT to go nuclear - otherwise they would never have signed onto the deal in the first place.

It would be better if the nuclear confrontation came on a SCOTUS nomination, to give a name and face to the underlying issue - lower-court nominations, even to circuit courts, are faceless commodities to the broad electorate. Unfortunately that is not in our hands, because there's only so far that we can hold noses on some of those people.

Still, the GOP losts its BEST chance to go nuclear, because once someone blinks they are more likely to blink again, and Bush's numbers aren't getting better.

-- Rick Robinson

[RonK, Seattle]

Orange juice, eh? Hmmm. Tried vodka?

Personally, I'm concerned that the judge-mongers may have been experimenting with reproductive cloning and worse, in some secret offshore laboratory ... maybe on a tropical island utopia created by the libertarian wing of the FedeRalIST Society.

Q: What do you get when you cross an Originalist with an Octopus?

A: I dunno, but it'd better keep its slimy tentacles off my 28-foot tall Social Security gorilla.

Rick -- They're getting blinkier all the time.

[kainah]

It really seems to me that their argument that owen, Pryor and Brown are the standard is crazy. It is also so incredibly easy to refute.

It obviously took an extraordinary process -- threatening the nuclear option -- to get them their vote. That's a clear cut example of an 'extraordinary' case.