Tuesday, May 24, 2005

More on The Judicial Confirmation Deal: Maybe My Guarded Optimism Shouldn't Be So Guarded

John Podhoretz suggests that the deal is really just a smokescreen to give both sides (mainly Democrats) political cover and avoid the Consitutional option being forced on the Dems. OK, that's not exactly what Podhoretz says but that's the inescapable conclusion if he's right:

This deal is therefore effectively about the judges it mentions -- and about them only. Every future nomination will be decided as follows. If the Democrats insist that the next nominee(s) are bad enough to invoke the "extraordinary" right to filibuster, the Republicans have the right to say the Democrats are full of it, kill the deal and go to the nuclear option immediately.
I hope so. As a legal eagle, I know that sometimes when both sides in a dispute have battled themselves into a corner and they both want out, they'll agree to fuzzy language in some kind of settlement agreement, declare victory, and move on. That may well be what McCain and Co. wanted to do here.

Why would they do that? Well, experienced negotiators go into discussions only when they know what they want to come out with. I believe McCain, as mercurial and self-absorbed as he is, had a goal: To get out of a box.

What box? As Hugh Hewitt suggested on his radio show today, McCain had taken a big and irreversible step by siding with the Democrats on a key issue. His future as a Republican was consequently in great doubt, and yet he couldn't back out without looking like a flip-flopper. He desperately needed to avoid the Senate rules confrontation the Republicans had threatened, because the GOP likely would have triumphed. Imagine McCain's position then: He sides with the Democrats who are obstructing judicial confirmation votes on qualified nominees-- a "red meat" issue for center-right Republicans (not "extremists;" McCain knows better than to call them that). Then he and the Democrats lose when push comes to shove. McCain's presidential ambitions are then toast.

So McCain engineers the "extraordinary circumstances" fuzz-over, and his little group gets to claim they resolved the impasse and still cry "foul" if the Democrats resort to filibustering any nominee who's not a certifiable wing-nut. To a lesser extent, Democrats Lieberman, Nelson, and perhaps others also can distance themselves from their fellow Democrats by claiming disagreement with the rest of their caucus on the "extraordinary circumstances" issue.

Assuming I'm right, my problem with this agreement is that it is utterly self-serving for the gang that assembled it, especially McCain. It's not in the best interests of the Constitution or any overly-treasured Senate comity. After all, the agreement recognizes filibustering of judicial nominees as a legitimate tactic. But it does save John McCain's hide, and I guess it does ingratiate Lindsey Graham with John McCain. (Hugh thinks Graham wants to run for VP on McCain's ticket. Good luck, boys!)

Profiles in Courage? No, more like Profiles in Egotism. But if this unnecessary, unprincipled compromise gets us where we need to go we can be happy about that, at least.

UPDATE: The comments to this post, below, are very much worth reading.


Anonymous Anonymous said...

Who won? That's easy.

There will be no more filibustering of Presidential nominees -- Full Stop.

1. The only reason the Democrats cut a deal is that they knew full well theirs was a losing hand. Frist had the votes and all were headed to an accounting. This deal provides some face-saving and averts an ignominious defeat.

2. The actual debates were far more painful to the Democrats than to the Republicans. Not only did the Republicans have the votes -- they had by far the better arguments. The Republicans kept throwing the Democrat Senators own words back at them, rubbing their noses in their hypocricy. Not fun. They will not willingly go through this again, especially now that they'll have affirmed the judges they demagogued against the most. Four or five days of non-stop debate by the Senators themselves is enervating and incredibly costly. Crisis averted, they won't do it again.

3. But, Frist has no choice but to bring up all nominees to floor. His political future depends upon his following through (and Bush is relentless). And if the Democrats force a cloture motion (by more endless debate) on any remaining nominee they force their seven "moderates" to make a hard choice: honor or party. If these seven did hang with their party the seven "moderate" Republicans would face a similar choice: dishonor or party. And it would only take two of them to make a finding of fact (that the Democrats were "unreasonably" filibustering) for the Nuclear option to pass (50 + Cheney = win). And all of this would play out again on the national stage and the Democrats certainly don't want that.

So how will this play out, you ask? Quietly, I say. All seven of the nominees that have been voted out of committee will get a vote by the full Senate. Mind you -- they won't all necessarily be confirmed. There may well be a little log-rolling behind the scenes. But they'll all get their votes.

Who wins? Well Frist, clearly. He'll deliver the up/down votes. And all fourteen of the "moderates" win as well.

Who loses? Reid & Co. They get nothing out of the deal -- except some cover. They didn't actually have to commit suicide on national tv.

Now, you can ask if this calculus was what was driving this deal or whether this is an unintended effect. Likewise, you can ask if Frist yet knows he's won and Reid that he's lost. But in the end it makes no difference: the facts on the ground are the facts on the ground. 

Posted by Norman Rogers

Wednesday, May 25, 2005 5:33:00 AM  
Anonymous Anonymous said...

Remaining optimistic while outraged is difficult but necessary. The long term benefit of encouraging conservatives to seek power may overcome any short term frustration. Hope springs eternal! 

Posted by Mark

Wednesday, May 25, 2005 7:08:00 AM  
Anonymous Anonymous said...

I'm willing to be optimistic but outraged. Mostly optimistic because I believe in one final, blazing stroke, John McCain has tubed his chance at a Republican nomination. As for outraged, I have to agree wholeheartedly with Thomas Sowell: A Compromised Party  "The Senate Democrats hung tough and the Republicans wimped out. The Republicans had the votes but they didn't have the guts."  

Posted by BlueBuffoon

Wednesday, May 25, 2005 9:39:00 AM  
Anonymous Anonymous said...

In the long term the biggest loser is the United States Senate. What a loathsome bunch of egos. I look for contibutions to the Rebublican Senators to dry up, not only to the gang of seven. 

Posted by Bob

Wednesday, May 25, 2005 4:46:00 PM  

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