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Monday, May 23, 2005

Seven gutless suckers in the Senate

Sometimes you look at the results of a negotiation — supposedly made by bright, well-informed and -motivated adults on both sides — and you gotta shake your head and point to the folks who were on one side of the deal and say: "Them suckers just got robbed blind."

This is grand larceny masquerading as a "deal." Only a complete idiot would think that this

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.

— is a fair trade for this

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.

The seven suckers are Senators John McCain (R-AZ), Mike DeWine (R-OH), Olympia Snowe (R-ME), John Warner (R-VA), Lindsey Graham (R-SC), Susan Collins (R-ME), and Lincoln Chafee (R-RI).

Gutless. That's the least profane and most applicable adjective I can come up with to go along with "sucker." Now, "gutless" is a harsh word to apply to a genuine war hero like John McCain. And I don't question his, or any of the other seven's, patriotism. But we're specifically talking about political principle and courage here, and this is a politically gutless act.

These seven, in the "spirit of compromise," have guaranteed that at least two judicial nominees — William Myers (9th Cir.) and Henry Saad (6th Cir.) — will be successfully filibustered. As a direct and intentional result of their "deal," the United States Senate will deliberately violate its constitutional responsibility to either consent, or to refuse to consent, to at least two of the President's judicial nominees.

I don't claim to have thoroughly researched these two nominees — and their comparative merits, or lack of merits, in an absolute sense or as compared to other nominees is frankly irrelevant. I don't know if these two nominees would have, or should have, been confirmed by a simple majority vote. If these same seven senators had voted against both of these nominees — or for that matter, against all seven of the renominated candidates — I might disagree with them, but I would not ridicule and condemn them.

These nominees, and every other judicial nominee submitted by the President of the United States — whoever he may be, of whatever party, because he is the President of the United States — are entitled to that vote. And these two — at a minimum — won't get it.

And in exchange for giving their promise to violate their constitutional duty — their clear, written, unequivocal promise to guarantee that the Senate as a whole defaults on its constitutional duty — these seven senators got exactly nothing. I defy any of these gutless suckers to lay out a scenario in which the "promise" by the Democrats to only filibuster "under extraordinary circumstances" can be enforced, even in the hypothetical "court of public opinion."

Jonah Goldberg writes, "if the Democrats filibuster in something which Republicans don't consider to be an 'extraordinary circumstance' won't the deal be broken and then the Republicans will be free to change the rules[?]" Umm, no. Whoever drafted this piece of larceny extracted a concession which guarantees that the Republicans can never "cry foul" unless they can plead and prove that the Dems are not acting in "good faith" — and not objective "good faith," as measured by the law's proverbial "reasonable man" standard, but subjective "good faith," as measured by each senator's "own discretion and judgment." No one can ever prove, or even make a compelling argument, that this standard will ever be violated.

Only three are guaranteed not to be filibustered. Two at a minimum will be filibustered. But the important question is: How many more will be filibustered?

Beldar confidently predicts: At least one more judicial nominee will be successfully filibustered in the 109th Congress — specifically, anyone that Dubya nominates to the United States Supreme Court. These seven gutless senators — nominally Republicans — have just handed the Democratic Party an absolute veto over the next Supreme Court nominee, which will likely be for the Chief Justice slot.

At least Jack, of Beanstock fame, could eat the handful of beans if his own fairy tale didn't come true. These seven senators got far less than he did. They got nuthin'.

I'm not surprised. But I'm thoroughly disgusted.


UPDATE (Mon May 23 @ 9:15pm): Ed Whelan, despite his great credentials as a lawyer, also misses the point of the way the "memorandum of understanding" was drafted:

The Republican signatories' agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories' living up to their end of the bargain. The fact that the MOU contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory's determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory's determination of extraordinary circumstances amounts to a violation of the MOU. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute "extraordinary circumstances."

No. That's not a fair reading. If the seven gutless suckers had negotiated harder, they would have either (a) gotten some objective "test" that was not expressly tied to the subjective state of mind of the filibustering Dems, or (b) at a minimum, have deleted the expressly subjective standard (which might have arguably then "implied" that a reasonable-person standard would apply).

Rarely, in drafting a contract, I'll agree to insert a "reasonable person" standard that's intended to be fairly open-ended, even though it's an invitation to litigation over what that hypothetical reasonable person would say. For example, leases often say, "The tenant can't sublet without the landlord's consent; but the landlord shall not unreasonably withhold his consent." Okay, that's something. If the best reason the landlord can come up with is, "That guy has blue eyes, and I just hate blue-eyed people so I won't approve a sublease to him," then the tenant will win his lawsuit, probably, after a bunch of time and expense. But if the lease says, "The tenant can't sublet without the landlord's consent, and the landlord has absolute discretion to make his own subjective judgment as to whether consent is or isn't reasonable," then that blue-eyed guy ain't gonna get the sublease, and the tenant's lawsuit is going to be instantly dismissed.

Under what's in the document, it doesn't matter if the filibustering Dem is wrong, or if he's being objectively reasonable or not, or if 99.99999 percent of the American public would agree that "this nominee isn't an 'extraordinary circumstance.'" Under the express terms of this deal, the only thing that matters is what is inside the head of the filibustering Dem. And the only way anyone knows what's inside his head is ... what he says.

I repeat, to claim that the Dem signers have breached, Republicans have to go on the record, on the floor of the Senate, naming names, and saying, "I'm voting for the nuclear option now because that senator is lying when he says that, in 'good faith,' in the senator's own subjective judgment and discretion, Nominee X is an example of an extraordinary circumstance. That senator's real but secret judgment is that this is an ordinary nominee, and he's just lying about what's inside his head."

That's not ever going to happen. Even if John McCain or John Warner believe that Mark Pryor or Mary Landrieu are lying through their teeth and don't believe the Chuck Schumer/Ted Kennedy Democratic party line about the next Supreme Court nominee, John McCain and John Warner aren't going to say, "The honorable gentlewoman from Louisiana and the honorable gentleman from Arkansas are lying sacks of s**t." That is what we can be sure will never happen — that sort of intense personal confrontation — "I reject your statement as to your subjective belief and your own 'discretion and judgment,' and I say you're acting in bad faith." Never. Just can't, won't, mustn't happen, because Senators can't call each other "lying scumbags" on the floor of the Senate without really destroying the "collegiality of the institution."

Lindsey Graham on MSNBC just now:  "But if there's a filibuster in the future, Lindsey Graham has the right to [vote to] change the rules if he believes that filibuster is bad for the country." No, Senator. Did you read the document before you signed it? It's not your judgment that matters, it's theirs. And you agreed to that. If they're badly, badly wrong, but still acting in subjective "good faith" — which can never be disproved — then your obligation is to vote against any rules change. Who's the public going to think broke his word, the senator who made a fuzzy promise that he says he's still complying with, or the senator who made a very clear promise and can't prove that the fuzzy guy is lying?


UPDATE (Mon May 23 @ 11:00pm): Andy McCarthy gets it, however. So does Dan Dalthorpe at Confirm Them":

The commitment to oppose rules changes is unconditional. There is no out clause such as, "We commit, so long as Democrats are not abusing their discretion in our eyes." Instead, it says, "We trust that the Democrats won’t filibuster Luttig, McConnell, Estrada, Alito, or whomever is nominated to the Supreme Court unless they, in their own discretion, decide they want to. For our part, we put it in writing that we won’t support any rules change because our trust in those Democrats is absolute. Trust but verify? Nah. That’s mean. We just trust "period."


UPDATE (Mon May 23 @ 11:40pm):

Ramesh Ponnuru, however, doesn't get it:

I'm going to revise and extend my remarks. The sentence on rules changes runs: "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress. . ." That wording seems to allow for some Republican wiggle room if Democrats act contrary to the deal's "spirit." Republican signatories — especially Graham, DeWine, and Warner — should be asked to clarify their reading of the deal's ambiguities.

Nuh-uh, nope. You can't imply an obligation on the Dem signers' part to act in accordance with the "deal's spirit" when the written agreement expressly and unambiguously says that they are free to act according to their own unfettered, unchallengeable, subjective, private exercise of "discretion" and "judgment." This is another example where the common law of contracts (which says you can't imply a term into a contract that's contrary to an express term that the parties talked about, wrote down, and said they were agreeing to, and you can't vary the written terms with some sort of vague oral "understanding") is going to track the common-sense "court of public opinion":

"Why, what do they mean, accusing us of violating the 'spirit of the deal'? The 'spirit of the deal' was that I get to use my own judgment and discretion! See, it's right here! Just above the promise THEY made, and are now breaking, not to use the nuclear option!"

Wishful thinking, Ramesh. But wrong.

Lemme put this in language that is very crude, but apt: This is a deal where (a) both sides have agreed to "play nice," but (b) the Republicans' hands are tied, while the Dems' hands are (c) completely unfettered and (d) now holding the Republicans' testicles in their right hand and wielding a sledgehammer in their left. Will the Dems play nice? Well, we know they think Myers and Saad nominations are "extraordinary situations," because they're already promised to give the Republican President and his party a good whack in the testicles when those nominations come to the floor. And you think they'll play nice if Dubya nominates a young, strong, outspoken judicial and political conservative to be the next Chief Justice? Ask Robert Bork.


UPDATE (Tue May 24 @ 12:20am): Sigh. The Pod is also engaged in wishful thinking:

[W]hat happened last night is very important. It breaks the Democratic logjam on circuit-court nominees. It establishes the principle that conservative judges have every right to serve on the higher benches even if Democrats can't stand it. And it means that if Republicans have to break the filibuster to ensure an up-or-down vote on a Supreme Court justice, they will have a very strong argument indeed. The argument will be that they are breaking the filibuster out of respect for the tradition that says the choices for the highest court must be advised and consented to by the full Senate.

The deal "broke the logjam" for exactly three nominees to the circuit courts. It expressly tanked the prospects of two others, and left several others — and all future nominees — subject to filibuster whenever the Dems decide, in their sole and unchallengeable discretion, that a nomination is an "extraordinary circumstance." Will that be forty percent of the time, as the names named in the document would suggest? That's the linear computation (ignoring the nominees not mentioned either way).

The deal establishes no "principles" that can be meaningfully determined or enforced. Nothing in that document says, or even suggests, that "conservative judges have every right to serve on the higher benches even if Democrats can't stand it." To the contrary, the deal creates a clear factual precedent (binding for at least this Congress — and that's damn near the only thing in the deal that's well-drafted, i.e., it doesn't bind the signers beyond 2006) that the Dems can indeed filibuster even circuit court nominees. If they can filibuster circuit court nominees, they certainly think they can filibuster Supreme Court nominees.

And the gutless suckers have already forfeited their right to argue that "tradition that says the choices for the highest court must be advised and consented to by the full Senate." They've signed a document that makes no distinction between nominees to the Supreme Court and any other nominees. Tradition or principle be damned, they've made an explicit promise. All that the Dems have to do to satisfy their part of the bargain, to the extent it can be enforced in the court of public opinion, is not to filibuster Pryor, Brown, and Owen. Heck, they can still try to get those three defeated, so long as they don't filibuster.

Pod's post is entitled "Don't Turn a Victory into a Defeat." I'm trying very hard not to violate Godwin's Law here, so I can't say anything about Munich or Dunkirk. I'll just say that as victories go, this one ranks right up with the Trojans' big win right after some of their guys decided that wooden horsie would look keen inside the city walls. Mmmm, lovely aroma of charred meat, what? Gives one a healthy appetite (if you close your eyes and pretend very hard)!


UPDATE (Tue May 24 @ 9:00am): Moving what started as an update here to a new post, live-blogging today's Senate floor proceedings.

Posted by Beldar at 08:03 PM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Seven gutless suckers in the Senate and sent a trackback ping are listed here:

» Kicked In The Teeth from PunditGuy

Tracked on May 24, 2005 12:20:02 AM

» Quotes about "The Deal" from Mark in Mexico

Tracked on May 24, 2005 12:51:23 AM

» BREAKING: Compromise on "nuclear option" reached? from protein wisdom

Tracked on May 24, 2005 1:00:47 AM

» Beldar on the Capitulation from Patterico's Pontifications

Tracked on May 24, 2005 9:03:44 AM

» Always Look on the Bright Side of Life from damnum absque injuria

Tracked on May 24, 2005 11:20:54 AM

» Tired of Speculation from Patterico's Pontifications

Tracked on May 25, 2005 1:14:52 AM


(1) Zego Mandelbrot made the following comment | May 23, 2005 11:09:38 PM | Permalink

Hail Mizchif/Pontifex - Amazing where the internet takes you eh? I hope you'll remember me from our online adventures together on Fennin Ro.

Regarding the above invective, I am not a lawyer and I fully realize that I am out-matched in debate skills, but it seems to me that any process that results in forcing the slim majority to make a compromise so that highly polarized nominees are not forced upon the minority into permanent positions on the bench is a good one.


(2) DRJ made the following comment | May 23, 2005 11:09:53 PM | Permalink

Bravo, Beldar. You are exactly right. It's apparent to me that most of these Senators (of both parties) put their own self-absorbed egos and motives ahead of every other consideration. They could care less about judicial nominations, party loyalty, or representing their constituents. Most of these oh-so-agreeable Senators have Presidential aspirations, and I submit this is all about looking like a moderate for 2008 political purposes.

(3) PC made the following comment | May 24, 2005 12:24:15 AM | Permalink

Keith Thompson from Sanenation mentions this strategy:

"Unless, of course, Mr. Bush chooses to fill the first Supreme Court vacancy with the newly sworn-in nominee to the D.C. Court of Appeals, namely Janice Rogers Brown. The president need only say how impressed he is with her, and of course Barbara Boxer and the Nay Sayers Caucus will not be able, credibly, to say nay in her direction, given that Brown was just vetted for the appellate seat. That would be a brilliant move.

(4) mcg made the following comment | May 24, 2005 12:44:10 AM | Permalink

Beldar, I think you're reading this too much as a legal document instead of as a political one. Lindsey Graham's hands are not tied 1) if he doesn't think they are and 2) if he can effectively persuade the public that they are not. All the legal interpretation in the world does not matter; this document is not legally binding. So to me, as disgusted as I am about their "cave", I am willing to wait for the first attempted filibuster to pass full judgement on these so-called Republicans. But if they blow it, *boom* I'll be donating to their primary opponents---or perhaps even their Democratic opponents---at the next election. What good is a majority if they're too limp-wristed to exercise it?

(5) Beldar made the following comment | May 24, 2005 12:47:00 AM | Permalink

Nope, won't work, PC, as much as I wish it would.

All the Dems have to say is, "Well, sure, I reluctantly decided not to filibuster Brown for a circuit court seat, but putting someone like her onto the Supreme Court — well, that changes this into an 'extraordinary circumstance' in my subjective, personal, good-faith exercise of judgment and discretion."

And in truth, as important as circuit judges are, Supreme Court nominees should be held to a higher standard.

(6) vnjagvet made the following comment | May 24, 2005 12:47:01 AM | Permalink


Welcome back to the battle.

I'm with PC on this one as I have posted throughout the night on polipundit (See Mclure's thread when it comes back) and Cpt. Ed.

I focus on the Dem 7, not the Republican 7.

Several Red Staters in that gang.

Consider how the swing voters in those states will react to comparisons of conservative credentials or non-activist judicial philosophies between Owen, Rogers Brown and Pryor on the one hand and NewCandidate on the other. I doubt if we will find candidates to the right of any of the "now mainstream three".

We'll see how this plays out, but this might be some more of the old "misunderestimation" you Texans are used to.

(7) Beldar made the following comment | May 24, 2005 12:57:23 AM | Permalink

mcg, of course this isn't a legally binding document. But none of the Republican signers are ever going to vote for the nuclear option during this Congress. They will hold to the letter of their (clear, precise) commitment, even if the Dems violate the spirit of their (fuzzy, unenforceable) one. Because the document expressly makes the Dems' subjective state of mind determinative, the Dems case is a slam-dunk in the court of public opinion, the same way it would be in a court of law. These guys, by definition, didn't have to stones to stand up to the Dems now; how do you expect them to grow stones when they're going to be hammered with their signed promise, even in the court of public opinion?

The reason the Dems got this in writing and then rushed it onto the airwaves is because they think they can hold the Republican signers to its terms. What upside, by contrast, is there for the Republicans to have a long-term written agreement with continuing obligations? The Dems' obligations will be finished by the end of May, when votes are held on Owen, Brown, and Pryor. The Republican signers' obligations last through 2006.

Not legally enforceable, I agree. Incredibly powerful short exhibit to put on a poster-board for a CNN sound-bite? Oh, you betcha.

vnjagvet, note that the Red-State Dems only made commitments about filibusters, not about voting. There's a long, long Senate tradition of senators who won't vote for cloture because they claim to believe in the "tradition" of unlimited debate. That's exactly what Republican senators did for DECADES when they refused to kill southern Democrats' filibusters against civil rights laws: "Oh, well, of course I'm for civil rights and against this lynching, and would have voted for the bill. But that wasn't the issue on this vote. This vote was about whether to stop debate! And I believe in free and open debate!" And none of these senators ever lost re-election even though their constituents, to the extent they cared, were pro-civil rights. (Thus, for example, in 1957 LBJ was able to line up moderate and liberal western senators who committed to vote against cloture if the Southern Caucus needed their votes to sustain a filibuster against an undiluted civil rights bill, in exchange for passage of a bill to build a big hydroelectric dam that would help several western states. Crass as crass could be, but it got senators out west re-elected, not defeated.)

Next Supreme Court nominee, they can say this to the confused folks back home (less than 10 percent of whom have this on their radar screen at all): "Well, y'know, I would have voted FOR Nominee X if there had been a floor vote. And you know, I was one of the leaders who stepped forward to put a stop to the promiscuous filibustering on a routine basis for lower court nominees. But there was an exceptional amount of controversy about Nominee X, just exceptional. And with all that controversy, in these exceptional circumstances, I thought it was unwise of the President and his party to try to rush the nomination through. No, I believe that there's a proper role for the filibuster in these exceptional circumstances, even if it frustrates the way I would have voted, because I believe in free speech and the tradition of the Senate."

That's all a load of crap. But it only needs to anesthetize a very few voters. It's worked before.

(8) lyle made the following comment | May 24, 2005 2:13:23 AM | Permalink

Beldar, normally I would bow to your legal genius, but I read the agreement differently.

'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.'

As you noted, Democrat signatories have a right, in their blackest of black hearts, to decide that extraordinary circumstances exist. But equally, Republican signatories can decide, in their purest of pure hearts, that extraordinary circumstances do not exist.

They do not have to accuse any Democrat signatory of bad faith. They merely have to decide that the circumstances are not, in their individual judgments, extraordinary.

(9) lyle made the following comment | May 24, 2005 3:11:41 AM | Permalink

In a business contract, the violator may be subject to court costs, penalties, or punitive damages. But the Senate is not a court room. This is a political handshake, premised on the continuing self-interest of the signatories.

Red-state Democrats - especially those up for re-election in '06 - desperately wanted the filibuster issue to go away. They needed a deal whereby they could vote for cloture in the present and then, with a pretense of deep soul-searching, bolt their party's ranks on future filibusters.

The threshold for breaking this deal is not impossibly high. It is nearly non-existent. It simply requires an individual signatory to find the circumstances extraordinary, or not.

Democrat signatories have the most to lose, because in violating the agreement they undo it, restore the nuclear option, and put their red-state political lives back at risk.

(10) Adjoran made the following comment | May 24, 2005 3:14:04 AM | Permalink

It is possible to accept either Beldar's interpretation of the political possibilities, or lyle's. We cannot know which is correct until the nominees Saad and Myers come up for a vote.

If the GOP members of the Gang of Fourteen vote down either on the floor, or refuse to vote for cloture or for the nuclear option when cloture fails, we can presume this was an unwritten part of the deal, which Beldar presumes from the text.

I am perfectly willing to condemn the conspirators, if and when their conspiracy comes to fruition. Until then, I give them the benefit of the doubt, and the promise of close scrutiny.

(11) Beldar made the following comment | May 24, 2005 3:33:41 AM | Permalink

lyle, the document could have been drafted to create parallel rights and obligations.

It could have been drafted to say that each signer will not vote for a rule change, except when, in a good faith exercise of his/her subjective individual judgment, that signer decides that another signer is filibustering in other than "extraordinary circumstances." That's the way you're reading it. But that's not at all what the document says.

It could have been drafted to say that each signer will not vote for a rule change, except when a reasonable person would conclude that another signer is filibustering in other than "extraordinary circumstances." But that's not what the document says either.

The prohibition on changing the rules, on its face, is absolute. The document contains no exceptions.

Even if one presumes that a proven violation by the Dems would justify nonperformance by the Republicans, the only provable violation by a Democratic signer that could void the whole deal would be if they refuse to vote for cloture on Owen, Pryor, or Brown. That won't happen.

With due respect, you're reading language into the document that isn't there. It coulda and shoulda been, but it isn't. As written, "extraordinary circumstances" can only justify a filibuster. There's nowhere that it says "extraordinary circumstances" justify a change in the senate rules or the Nuclear Option. Indeed, the promise not to change the senate rules is in a "whole nuther section."

And if your interpretation were correct, the document could not also have referred to the senators' individual "discretion and judgment" in deciding whether there are "extraordinary circumstances" justifying a filibuster. Placing near-absolute authority in the hands of the senator who decides whether or not there are "extraordinary circumstances" is logically inconsistent with either (a) a neutral (hypothetical reasonable person) standard for judging what's "extraordinary" or (b) a standard that lets every senator who's promised not to change the rules decide whether every other senator who's filibustering is right or wrong on what's "extraordinary." In other words, the language you're reading into the document not only isn't there, but it's an interpretation which is necessarily and conclusively negated by the inconsistent language that is there.

Wishing doesn't make the document read any differently. I wish that it could. But with due respect, it just doesn't.

(12) James B. Shearer made the following comment | May 24, 2005 3:45:14 AM | Permalink

Beldar, your reaction seems more emotional than thought out. You are assuming the Republican parties to this have the same objectives as you and have been swindled. I think this is unlikely. McCain for example had already said he opposed the nuclear option so what is he giving up? Obviously none of them were anxious to support Frist on this and they found a way out. And I suspect all would prefer a somewhat more moderate set of judges than Bush has been nominating and will shed no tears if that is the eventual result. Just because you don't like the probable results of this deal doesn't mean they were tricked into it. They may like the result just fine.

(13) ttyler5 made the following comment | May 24, 2005 4:03:14 AM | Permalink

Beldar, like your blog and I always link it at any sites I build.

I think you're wrong on this one, though. Owen, JRB and Pryor are now the standard, not the "extraordinary".

This brings an end to democrat filibusters against nominees. They were looking for a way out because they understand they have been committing political suicide with obstructionist tactics and there is an election next year.

Personally, I wanted them to keep doing what they were doing, it would have meant at least 5 new GOP senators next year.

(14) lyle made the following comment | May 24, 2005 4:24:05 AM | Permalink

I believe I am reading the agreement in the plainest way possible.

It is up to each signatory, on both sides, to determine whether the circumstances are extraordinary and therefore merit a filibuster. It is not necessary to characterize another signatory as ill-intentioned, but merely to characterize the circumstances.

There is no need to prove bad faith or malice. If a Republican signatory decides that the circumstances are not extraordinary, and the filibuster therefore unjustified, he is free to withdraw from the agreement.

It isn't a business contract. It is a political deal undertaken and enforced solely by mutual self-interest. When it is no longer in the interest any signatory, it evaporates.

If the deal lasts, it will be because the Democrat signatories considered party discipline to be too costly for their political careers. They need a way to vote for cloture, and to continue to do so.

(15) Beldar made the following comment | May 24, 2005 5:13:19 AM | Permalink

Mr. Shearer, your point is well made and well taken. A great deal of my indignation is based on my fear — as one whose career requires such fears, and precautions against all hypothetical feared outcomes in negotiating and drafting agreements — that regardless of their present intentions, circumstances and partisan pressures will impel the Democratic signers to declare "extraordinary circumstances" with respect to a nominee who, for the President who nominates him or her, is indeed quite "ordinary" and consistent with that President's campaign promises. Sen. McCain aside, other Republican signers — Graham, for example — claim to believe that judicial filibusters are wrongful, pernicious, even unconstitutional, and but for this compromise might well have voted that way. It's the loss of their votes, rather than Sen. McCain's (which was probably lost already anyway), that troubles me.

And ttyler5, I very much hope that you are right, and I am wrong, and that every Democratic signatory will indeed adhere to the "spirit" of the deal and the interpretation of the document that Sens. Graham and DeWine, and like-thinkers among the conservative punditry and blogosphere, are urging.

But, again with respect, friend lyle, when you write that "[i]t is up to each signatory, on both sides, to determine whether the circumstances are extraordinary and therefore merit a filibuster," you describe terms that do not exist in the document as written, and that are contradicted by other terms in the document that was. Your point about mutual self-interest is absolutely right — when both sides have a genuine meeting of the minds as to what they've agreed upon, and when their intent is clearly and unambiguously expressed in their writings. If the Republican signers' intent and understanding was consistent with yours, my friend, I fear that there was no genuine meeting of the minds, that there is not a lasting alignment of self-interests, and that there will inevitably be a dispute, recriminations, and finger-pointing.

Hence my concerns. I concede that not all suckers are taken advantage of. Not everyone who induces a sucker into a deal intends, or turns out, to take undue advantage.

But even if such turns out to have been the case when we have hindsight to draw upon (probably by summer's end if Chief Justice Rehnquist resigns at the end of the current Term of Court), I will still maintain that the deal, as drafted and documented, stunk — both because of the abuse and controversy it invited and the ease with which it could have been exploited by one side against the other. I'm a crusty, suspicious lawyer, but I am indeed sometimes wrong in my predictions.

(16) lyle made the following comment | May 24, 2005 6:00:34 AM | Permalink

The agreement says: '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.'

I wrote: 'It is up to each signatory, on both sides, to determine whether the circumstances are extraordinary and therefore merit a filibuster. It is not necessary to characterize another signatory as ill-intentioned, but merely to characterize the circumstances.'

I can understand that you might not read these as identical, but I don't believe I have unduly exercised my imagination.

(17) Norman Rogers made the following comment | May 24, 2005 7:28:27 AM | Permalink

Beldar, take a deep breath.


I read this agreement as a complete cave by the Democrats and a complete win by the Republicans. Let me explain.

1. Forget parsing the agreement as if you were going to litigate over it. That's not what this is about. The Democrats would not have come to the table if Frist didn't have the votes. This piece of paper is meant to give the Democrats something to wave over their heads and cry, "Peace with Honor".

2. Play out the scenarios.

a. Pryor, Owen, and Brown get quick confirmations, per this agreement.

b. Frist brings up Saad, Griffin, Neilson, and McKeague -- one by one. Will the Democrats fillibuster them? Of cours not -- at least not to the point of winning a cloture vote. Indeed, today's WSJ quotes Reid as predicting, "that all would be easily approved." The Democrats cannot do elsewise, lest they call into question their good faith (they can hardly call the remaining four, extremists, having watched the first three sail to easy confirmations).

c. Bolton gets his up or down vote (and wins, with some Democrats voting, AYE). Again, the Democrats dare not fillibuster.

d. Bush picks his first Supreme Court nominee from someone who has been previously confirmed by the Senate (like one of these first three -- probably Brown). Again, no chance of a fillibuster because all have agreed they're not "too extreme".

What you've missed, Beldar is that this agreement is a political document, not a legal one. If the Democrats misbehave, Frist will call them on it and the drama will play out again on the public stage. A fillibuster will invite a cloture vote. Three of the four Republicans will feel pressure to make a finding of fact that the Democrats have not acted in good faith. Hence, they would be obliged to vote AYE for the Nuclear option.

What fun!

(18) absentee made the following comment | May 24, 2005 8:39:53 AM | Permalink

Just want to point out that Graham is a SOUTH Carolina senator, not North Carolina. Ours are Richard Burr and Elizabeth Dole.

(19) Beldar made the following comment | May 24, 2005 8:42:15 AM | Permalink

Mr. Rogers, this will indeed play out in a political arena rather than a courtroom. But we're talking about the people whose main job, ostensibly, is to write clear legislation. Written words and signatures and agreements matter. The reason the Democratic signers wanted this in writing was so they can shove it up the wazoos of the Republican signers later, my friend — not out of some academic habit.

On your options, I don't follow your logic. Your 2(b) point is not at all obvious to me, and I think in fact it's highly, highly doubtful. Assuming every other Republican votes with Frist, Frist has to peel off at least two of the seven gutless suckers to get to the tie needed for the constitutional/nuclear option. And seven Republican senators are committed — not contractually, but with something morally and practically equivalent to a contract — not to peel off. So yeah, I think there's actually a very high probability that the Democratic leadership can and will successfully filibuster any Bush nominee they choose except Pryor, Brown, and Owen.

And I repeat, for about the fifth time, that having been previously confirmed by the Senate to a lower bench means nothing. Ask Charles Pickering, confirmed by the Senate to the federal district court bench, then filibustered by Dems out of his Fifth Circuit nomination. The Dems don't even have to be devious; they just have to make the simple point (with which I actually agree) that Supreme Court nominees should be held to a higer standard than circuit or district court nominees, and that a nomination that is "ordinary" for the lower court benches can still be "extraordinary" for the Supreme Court. Consider this: If Bill "Roe is an abomination" Pryor had been nominated for the Supreme Court, do you think he'd be among the golden three today? Not a chance. On the Eleventh Circuit, he can't overrule Roe. On the Supreme Court, he plus four other Justices could. The Dems can stomach Bill Pryor being "ordinary" for the Eleventh Circuit, but they won't ever, ever let him be "ordinary" for purposes of this document if he were nominated to the Supreme Court.

lyle, I'll say this one last time. The language actually in the agreement says that every senator grades his own "good faith" on whether circumstances are or aren't extraordinary. That's the OPPOSITE of letting the public, or any other senators, grade the determination. It's the difference between getting to grade my own exams and having a professor do it. There's a good excuse for your confusion, with Republicans like Graham and DeWine and pundits like Pod giving the same interpretation. But that is absolutely contrary to the actual document -- it's not a close call. If you still disagree, let's just agree to disagree, okay? I'll presume that's your position, since I've read your same arguments on other blogs too, and I don't care to chase you around the blogosphere to demonstrate that the agreement says the opposite of what you read it to say. Thanks.

absentee, duly noted and corrected in the text above. Thank you.

(20) Rod Smith made the following comment | May 24, 2005 8:55:32 AM | Permalink

Beldar, I'm with you on this one. All legal points aside, a "gentlemen's agreement" requires "gentlemen" on both ends. Frankly, I don't see that here.

(21) Norman Rogers made the following comment | May 24, 2005 8:57:00 AM | Permalink

Beldar, you're still thinking of this as a litigator. Play it out.

1. If it blows up, who would be the "Ear" to hear the dispute. Answer: John Q. Public. There is no court to resolve disputes between Senators.

2. Do the math. Of the seven Republican signatores, four had already committed to vote no on the point of order. If the Democrats get nasty (e.g. pulling another fillibuster), only two of these seven have to make a finding of bad faith to justify their votes for Frist to win (fifty plus Cheney). The Democrats won't risk that -- they've already caved because they know Frist has the votes.

Take a deep breath and watch this play out. Our guys won. And adults don't have to crow.

(22) Scott made the following comment | May 24, 2005 9:01:03 AM | Permalink

Non-lawyer alert.

Sometimes it's the simple things. Under (A) the Dems commit and/or promise to nothing, nothing. It says nominess "should" only be filibustered in extraordinary circumstances. So not only is that left undefined as everyone is talking about, but it's just a "should". Geez, couldn't the Republican negotiaters get some stronger language than that?

Compare that to (B), where it doesn't say Republicans "should" oppose rules changes in the 109th Congress, it "commits" them to it.

Legal arguments aside, the Dems have much more wiggle room from a public relations standpoint to trash their end of this deal.

Awful, just awful.

(23) Al made the following comment | May 24, 2005 9:29:49 AM | Permalink

Beldar - as I'm sure you know, generally under contractual law, the parties to a contract have an obligation of good faith, pursuant to which each party must have honesty of purpose and an absence of intent to defraud. To the extent that Democrats' future actions demonstrate that not to be the case, Republicans are not bound by their agreement.

(24) 10ksnooker made the following comment | May 24, 2005 9:53:52 AM | Permalink

On a curious note, the other 48 GOP Senators did not sign the deal, nor or they bound by it. I just heard Allen say they are going to vote regardless. So let's see how long it really lasts. The deal makers are not the Senate leaders.

OBTW: if McPain thinks he showed his leadership and fitness for President, he should save his campaign money -- ain't gonna happen. Backstabbers aren't leaders.

(25) Beldar made the following comment | May 24, 2005 9:58:48 AM | Permalink

Media Lies pinged and trackbacked to this post, but I've been obliged to delete the trackback because the quoted text blurb includes an open blockquote HTML command that didn't get closed. TypePad's supposed to be working on a fix for this.

(26) Joe made the following comment | May 24, 2005 10:35:40 AM | Permalink


I almost always think that you are dead on with your analysis. On this though, I believe you are thinking in legal terms rather than political terms. I agree wholeheartedly with Mr. Rogers on this issue.

Furthermore, I think the Republicans in the Senate are spared having to go home and tell people that they are against debate. I was in favor of the high stakes game of chicken that was being played by Frist, but I did not want to see the filibuster eliminated from use for judicial nominees. At some point there will be a "progressive" nominee that will demand its use.

(27) GernBlanston made the following comment | May 24, 2005 4:08:58 PM | Permalink

This is like a 9-foot Giant (Republicans) getting kicked repeatedly in the shins by a midget (Democrats). The Giant asks repeatedly and nicely for the midget to stop. Finally, the Giant says "enough is enough...if you kick me in the shins one more time, I'll throttle you." The midget kicks the Giant in the shins again and the Giant pulls out a chain saw and cuts his own legs off.

(28) ttyler5 made the following comment | May 24, 2005 4:55:05 PM | Permalink

Beldar, I certainly -hope- I am right, too.

But your scenarios are, of course, also well within the range of realistic outcomes.

We saw the break in the dem party today, though: the 17 dem radicals plus Jeffords isolated on the far left, with 25 dems voting for cloture, including Clinton, who can now be looked on as a weathervain (note sp).

I can only say from my experience with the Texas leg that this would mean an end to the filibustering, and getting on with business before Joe Blow in the street starts to get mad about it.

(There is an entire Texas democratic party which learned the hard way about walking out on the business of the people, and the meaninglessness of being heroes to a few radicals while being bums shirking their jobs to the rest of us.)

(29) Neo made the following comment | May 25, 2005 12:55:57 AM | Permalink

The bottom line of this agreement is that, it is whatever the Senators think it is, as no court would ever attempt to enforce it.

(30) Blanknoone made the following comment | May 25, 2005 1:20:38 AM | Permalink

I rather agree with you. And, although this is a political rather than legal document, what do you make of one of the D's technically violating it? They were obligated to vote for cloture, and one of the signitories (Inouye) did not. He abstained. But their commitment was not to not vote against, it was to vote for.
I don't think this is important. It would be as a legal document, but not as a political document. But I think it rather telling that the D's broke their (very few) obligations within 24 hours of it being signed.

(31) Wouldn't You Like To Know? made the following comment | May 25, 2005 10:15:13 AM | Permalink

"the United States Senate will deliberately violate its constitutional responsibility to either consent, or to refuse to consent, to at least two of the President's judicial nominees."

And? Under the Republicans during the Clinton years, over 60 (That's sixty) of his nominees were blocked via the use of the Blue Slip technique. That's sixty positions left unfilled. Sixty more positions Bush got to fill. Where was the Republican outrage then? Non-existant. But now, the shoe is on the other foot. They can't stand having what they did for eight years thrown back in their face.

It's a shame they didn't use the nuclear option. Because it would have meant we could get any liberal we want when a Democrat takes the White House in 08. The Republican whining would have been music to my ears.

The GOP needs to grow some balls and stop their g*dd*mn whining. Either shut the hell up or go home, losers.

(32) ttyler5 made the following comment | May 25, 2005 12:30:13 PM | Permalink

wouldnt you like to know wrote:

"Either shut the hell up or go home, losers."

* Now, funny, that's exactly what our dems did here in Texas after the public got mad at them for walking out of the leg twice over redistricting and two of their own guys finally came back to Austin to break the walkout.

* And if I am not mistaken that's also what the dems in the senate did yesterday, because the ones among them who have any sense knew what would happen to them in next year's elections if they kept up the filibustering, let alone staged a shutdown or a walk out.

* I didn't know the GOP had blocked over 60 Clinton nominees, and it certainly puts the filibuster controversy in a new light. The GOP needs to grow some balls? Sounds like they already got some big cahonas to me, God bless 'em!

* a dem in the white house in '08? Yeah, right! And the Texas dems will sweep all statewide offices and the Texas judiciary, as well as gain majorities in the Texas house, the Texas senate and the Texas congressional delegation in '06! :^D :^D :^D

(33) Paul Deignan made the following comment | May 25, 2005 5:59:23 PM | Permalink

Beldar et al.

I still have openings in the Wine for Winners Challenge.

You're invited.

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