The Judicial Confirmation Deal: A (Sort of) Optimistic Analysis

A sadly appropriate image for this morning.

I agree with most observers (examples here and here) that this is a bad deal. Parts of it simply stink. Others are merely irritating. But I still see some hope that Bush's decisive re-election will yet result in the seating of the kind of judges that most Americans want to see on the appellate bench.

Here's the Memorandum of Understanding with my occasionally hopeful comments interlineated:

MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS

We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. [The signatories fail to mention this unspoken truth: Despite their professed respect for their leaders, they have cut them both off at the knees. Well, in truth Reid is cut off only at the ankles, Frist up near the hip. What a slam this is by these egotistical GOP Senators. I suspect they will not be asking many favors from their leadership soon. But why should McCain care about that? This gambit was the commencement of his campaign for president. Poor man-- he still thinks voters will rally to a squishy centrist.] 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 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 good news. Brown and Owens are now much immunized against attack if nominated to the Supreme Court.]


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). [These poor guys are probably dead as nominees.]

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. [Many have decried this provision, especially the vague "extraordinary circumstances" language. I like that language precisely because it is vague. Whatever else it might mean, I think it Democrats of conscience are now free to disagree with their leadership about what is "extraordinary." I know, I know-- maybe I am seeing a silver lining that does not exist. But I could be right! Will Joe Lieberman, Ken Salazar, and Ben Nelson -- who is from a very "red" state-- stand by and let a qualified nominee to the Supreme Court be filibustered? Maybe; maybe not.]


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. [Thus dies the Constitutional option. This is the big prize the Dems wanted; the largesse of the seven Republicans who gave it to them should not be forgotten by the rest of us-- ever.]

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. [I know of no authority whatsoever for the startling proposition that the Executive needs to consult with the Senate before submitting a nomination. Also, the plain meaning of the Constitution's text won't allow such an interpretation, as this observer at Confirm Them points out.]

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. [This sentence bothers me more than any other in the document. There would be no "return" because there is no early practice to return to!]


We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold. [Well, that's nice.]

Who signed this thing? According to The Hill:

Republicans signing the agreement were Sens. Mike DeWine (Ohio), Susan Collins (Maine), Lindsey Graham (S.C.), Lincoln Chafee (R.I.), McCain, John Warner (Va.), and Olympia Snowe (Maine).

Democrats signing were Sens. Nelson, Mark Pryor (Ark.), Robert Byrd (W.Va.), Joe Lieberman (Conn.), Mary Landrieu (La.), and Ken Salazar (Colo.).

Paul Mirengoff and John Hinderaker of Power Line are much less sanguine than even I am:

[Paul:] Senator Graham and his friends have likely given away one of the president's most important powers -- the power to nominate Supreme Court Justices of his choosing and get an up-or-down vote on them. I hope they enjoy the praise they are about to get from the Washington Post and the New York Times.

JOHN adds: [Sections II(A) and (B) contain] the key language. It is absolutely sickening. It promises the Democrats that the Republicans will not stop the filibuster during this Congress. It recognizes the filibuster of judges as a legitimate tool. And it blames President Bush for the Democrats' obstructionism. I've seen worse documents, I suppose, but it's hard to think of one offhand ....

Ouch.

By the way, about those seven Republicans:

• Shame on them for undermining the President this way.
• Shame on them for their outsize egos-- especially Senator McCain, who I still believe is a better man than he has shown himself to be in this case.
• How did a solid Republican state like South Carolina elect a squishy senator like Lindsey Graham?
• I will now give to individual senators' campaigns but never to the National Republican Senatorial Campaign Committee. I can't stand the thought that any of my money might end up helping any of the seven dilettantes.

UPDATE: 1or2thoughts has a succinct and devastating review of Senator Frist's efforts at leadership on this issue.