Monday, May 23, 2005

An Analysis of The Deal


We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

This memorandum is not intended to be a diss of the authority of Frist or Reid. But it's obvious whose authority is being dissed by this document. It is in line with previous compromises offered by Reid that Frist rejected. Frist was in charge of the majority. Frist did not get his way. Reid did.

Winner: Democrats

This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate's Judiciary Committee.

We have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

This is the concession the Dems had to make in order to get the Moderate Repubs to sign on. Without this there would have been no deal. It would have been nice if the Dems could have blocked the most egregious nominees (Owens and Brown) but by giving them the worst of the lot the Dems have given the Mods at least some cover with the extremist wing.

Winner: Republicans

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Myers and Saad are toast. I think you can expect their nominations to be withdrawn rather than face the indignity of another fillibuster. At first I thought of this as a draw, but then it occured to me that by giving the Dems even one nominee to filibuster the Mods have conceded the point as clearly as possible that filibustering judges is an acceptable practice. That is a pretty substantial precedent.

Winner: Democrats

Part II: Commitments for Future Nominations

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

This is the "extraordinary circumstances" circumlocution that is tying so many people in knots. Just what the hell does it mean? Well, like most freshly baked legalistic terms, it remains to be defined. How will it be defined? By how it is used in the future. It is not insignificant that the agreement explicitly leaves the meaning of "extraordinary circumstances" to the "discretion and judgment" of the signatories. In essence, this is a big punt to the future and has little meaning for now. It neither ties nor frees the hands of anyone. Which might lead to the conclusion that this is a draw. But the Wingers were insisting that there could never be an "extraordinary circumstance" under which a judicial filibuster was allowed. By conceding that such a thing might exist, the Mods have sided with the Dems on this issue.

Winner: Democrats

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

Big win for the Democrats here. The Mods have effectively told the Wingers to shut the hell up about the Nuclear Option. Furthermore, they have said that they will oppose any such attempt at an unlawful rule change in the future (though that opposition is contingent on the Democrats abiding within the "spirit" of the memorandum).

Winner: Democrats. Big Time.

We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

An even bigger win for the Democrats. It has been a hallmark of Winger philosophy that "Advice and Consent" does not mean that the Senate gets to have any input into who gets nominated. Wingers insist that the "original intent" of the founders was that the Senate got an up or down vote on nominees and that is it. The Mods have knocked that contention way out of the park with this one. They have sided with the Democratic position that the Senate holds a co-equal responsibility with the Executive branch when it comes to the appointment of members of the Judicial branch. They have sided with the balance-of-powers argument and, in the process, re-established the power of both the judicial and legislative branches.

Winner: Democrats. HUGE!

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.

There is very little doubt about it. At least on paper, this is a big win for the Democrats. They got pretty much everything they wanted: an agreement that filibustering judges is acceptable, an agreement that the "Nuclear Option" is not acceptable and an agreement that the Senate is more than a rubber-stamp for the President. In return the Republicans got three extremist judges with no concessions that future nominees will find an easier path to the bench.

It remains to be seen which side will be able to play this as a win in the public arena. That will be the big test for us over the next few days. But we should take heart in that struggle that, at least on paper, this is a big win for the Democrats.


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