An Intra-Hedgehog Debate: Judicial Confirmations

In a post below I referred to Hugh Hewitt's position on John McCain's "Gang of 14." Hugh repeated his argument in greater detail on ABC News Politics.

My brother Hedgehog Ralph disagreed (yes, we do that sometimes!) and posted a comment to my post, concluding that to reject the Gang of 14 compromise "would have likewise led to a brave, glorious and principled defeat, as opposed to two conservative seats on the Supreme Court."

This is clearly an issue on which reasonable people can disagree. To me, the essence of the matter is that because of the Gang of 14 deal, a filibuster to deny a Supreme Court nominee a floor vote is still viable. Had the Republicans in the Senate pressed the matter, they would have had 51 votes (the 50 senators committed plus the Vice President) to change the Senate rules so that a majority vote can send a nomination the floor. Because that didn't happen, only 40 senators can stop any nomination. Such obstruction is unprecedented in U.S. history. Hugh summarizes:

[H]ad the John McCain-led Gang not interfered with the GOP's majority's desire to move to a vote on the use of the filibuster with judicial nominees, a precedent would have been established that it is out of order to allow 40 senators to stop nominees from receiving a vote. Instead, McCain undercut the Senate's leadership. A few quality nominees were confirmed, Judges Brown, Owen, Pryor and Kavanaugh among them but others were thrown under the bus. No precedent was set, and still the obstructionism has continued.

That, dear Ralph, is what bugs me about the Gang of 14, and by extension, about John McCain. He describes himself as a "proud conservative," but he thwarts truly conservative efforts all too often. When President Bush presented legislation on the detainee issue, for example, McCain stepped forward at a critical moment and gave the Democrats political cover from a fight they did not want to face. Some people call that the gutsy behavior of a maverick; to me, it's unforgivable narcissism.

Ralph?


Ralph's Response

As noted in my comment, to which I refer the discerning reader (and those few non-discerning ones as well), back in April-May 2005, I favored bringing the "constitutional option" to change the Senate rules to a vote. I even posted a call for such a vote on this blog, citing the historic precedent of the breaking of the Democrats' "Silent Filibuster" in the House of Representatives by Speaker Reed, around the turn of the century, as recounted by Barbara Tuchman in "The Proud Tower." However, in retrospect, I doubt whether the Republican majority in the Senate really had the 50 votes that, combined with Vice President Cheney's tie-breaker, would have approved the Senate rule change on filibusters. The validity of the argument advanced by Lowell and Hugh Hewitt rests largely on the very questionable assumption that the GOP would have succeeded in changing the Senate filibuster rules. I believe that Senators McCain and Graham recognized the risk of losing a vote to change the rules, and acted to achieve the Gang of 14 compromise for that reason. I also think that Hugh fudges the facts a little when he says, "A few quality nominees were confirmed," and then fails to mention Chief Justice Roberts and Justice Alito on that list. They sailed through their confirmations, precisely because of the Gang of 14 compromise, which nipped in the bud any possibility of a Democratic filibuster of their confirmation votes. Senators McCain and Graham let it be clearly known to the Democrats that they would view any attempt to filibuster those nominations to be a breach of the Gang of 14 agreement, thereby providing grounds for a GOP vote to change the Senate filibuster rules.