The Deal: Not so bad
By kmaher Posted in User Blogs — Comments (4) / Email this page » / Leave a comment »
The Right no likee this deal. To run with the herd requires harsh denunciations of RINO turncoats.
But I think the Right is wrong about the filibuster deal. I left this comment late Tuesday night at confirmthem.com (and the sort of commentary there is reflected at National Review, Lucianne, Redstate and all the other places we trogs hang out). Some later thoughts are added in brackets:
What I see here is intense partisanship, and I must admit to sharing the disappointment.
However, I think many grass-roots Republicans and conservatives are stuck in campaign mode. We demonize our opponents and attribute nothing to them but bad faith. We may be proven right -- the Democrats who signed this agreement may bail at the first opportunity.
But it's also quite possible that they will be faithful to it: That "extraordinary circumstances" really means something [as in: unusual, non-judicial temperament, the sort of thing for which nominees used to be rejected]. We've heard a lot of mendacious, malicious languange on the part of the Democrats on the Senate floor the last few days, but I didn't hear any from the signatories [may be wrong here, I didn't listen to the entire debate]. The D's who signed the agreement gave their word not to abuse the filibuster. I'm willing to believe them, until they prove otherwise. And as much as many of us may despise Sen. Byrd, he's entering the legacy zone. He can be for the Senate, or he can be for the Democrats. I think he's chosen the Senate. Inouye may be in the same frame of mind.
President Bush will continue to appoint conservatives. He will still be president in January, 2007. [If the D's filibuster a Supreme Court nominee, I'm willing to wait and fight the 2006 election on this issue.] We hold the high ground. We'll work for a 60-member Senate majority in the 2006 elections, and if the Democrats continue to filibuster, we will have to work four times as hard.
But for now, I'll take these people at their word. Nelson, Landrieu, Lieberman, Pryor and Salazar have nothing to gain from breaking it. It's time to start bleeding our politics of the bitterness of the last 30 years, if you want to date it to the Nixon administration. This may be a start.
Every red-blooded Republican believes that confirming conservative judges is our most important mission. But there's a lot more to do, from energy production to Social Security reform. This helps. We'll get more conservative judges and the other business of the Senate will proceed.
And if it flops, we'll unleash the hounds.
P.S. If you've read this far, please consider that the judges we get confirmed -- once -- will be on the bench for 30 or 40 years. That's a helluva term of office. If you think a retention election every 10 years would keep them on the straight and narrow, go to Vote for Judges and sign the petition.
A little revise & extend: Almost all the commentary I've seen talks about the "Democrats." But the Senate's a funny place. You don't see people as different as Ted Kennedy and Orrin Hatch holding hands in many other circumstances -- and those two aren't the only odd couple around by far. If I'm not mistaken, even Jesse Helms and Hillary had a little fling toward the end of Helms' career.
We'd do well to look more closely at the individuals involved. On each side are old bulls who remember what life once was like in the Senate: Byrd, Inouye, Lieberman, Warner, Nelson, even Olympia Snowe. For the Democrats on that list, it must be a bittersweet memory, because they remember what it was like when they had all the power.
Add to the old bulls younger senators who perhaps went to Washington more determined to serve their constituents than their parties, who have other priorities, who may be Democrats in red states or Republicans in blue, or who at least don't have the stomach for all-out war: Nelson, Graham, Landrieu, DeWine, Collins, Salazar, Chaffee. Graham, for example, seems much more interested in Social Security than the judiciary. I bet Landrieu cares a lot more about military jobs than judges.
The only guy not on one of the two lists is John McCain. If he didn't take every opportunity to stab George Bush in the back, I might be willing to cut him more slack. But as it is, it just looks like another opportunistic photo op on his part.
At any rate, a deal's a deal. They shook on it. Minority senators, especially, who renege might see payback in pork. Let's see how this plays out before we declare defeat.
I've been reading and listening quite a bit about The Deal/Betrayal/Sellout/Victory trying to make up my mind on how I feel about it. As a mostly economic/libertarian conservative, I don't quite share the passionate disappointment of the SoCons both here at RS and elsewhere -- but I do understand it. If I had been working so hard for a cause, finally get power, and then have this happen... I'm sure I too would be angry and bitter. But that isn't my situation.
Nonetheless, the one thing about The Deal that really sticks in my craw is this:
Filibustering judicial nominees either is or is not unconstitutional.
I'm afraid when it comes to the Constitution, there really isn't a whole lot of middle ground, is there? The judicial filibuster is either constitutional, or it is not; it can't possibly be constitutional in some cases, like when a Deal is struck between 14 senators, but unconstitutional in other cases.
Maybe I'm simplifying this. But if the filibuster was an unconstitutional obstruction of the Executive's nominating power, then how can any Deal struck to continue to violate the Constitution be supported on any level?
If it's the latter, and the filibuster was a constitutional extension of the Senate's rulemaking authority, then the "nuclear option" really is nothing more than a naked power grab without a principled leg to stand on. In that case, any attempt to kill filibusters later on is again, just a naked power play. Then why stop there? Why not just change the Senate rules to allow the Majority Leader to put all minority party senators into some useless committee (make one up -- "The Committee On Invention of Perpetual Motion Machine") and none other. Nothing in the Constitution requires Senate committees, or dictates who gets to sit in them after all.
I just can't get my head around the concept that 14 senators can make a Deal to contravene the Constitution, no matter what the actual political wisdom of doing that deal might be.
I gather that those in the Coalition of the Chilling, and others who applaud the Deal, feel that filibustering judicial nominees is in fact constitutional. It might be bad faith politics, or bad manners, or whatever else, but it isn't unconstitutional.
I don't know if I feel that way, and hence my deep hesitation vis-a-vis The Deal.
-TS
I'm not a lawyer, so I could only venture a guess. My guess is that the case would be decided like this:
- The Constitution gives the Senate the responsibility to advise & consent.
- The Constitution also authorizes the Senate to make its own rules.
- The Senate allows unlimited debate.
- The Constitution places no time limit on the advise & consent function.
- Therefore, the Senate might argue that it will advise & consent when it is good & ready.
I further doubt that the Supreme Court would even hear the case, out of respect for the separation of powers.
don't hold that against me! j/k :-D
Seriously though, I wasn't thinking of unconstitutionality in terms of a lawsuit to be settled by the courts. Not everything is actionable, after all, despite what some might think.
Plus, it is simply irresponsible to cede deciding constitutionality to the courts in all cases. The Senate is a part of the government; they take the same oath to uphold the Constitution. I feel that a senator's duty is to do his level best to ensure that his/her actions do not contravene the Constitution, and should gauge for himself/herself whether an action is in fact constitutionally permitted or not.
Again, the thing that gets me is IF filibuster is unconstitutional, how the heck can you make a Deal to keep it going? If it is constitutional, then the whole shebang is a naked power grab... in which case, the question becomes, Why stop there?
-TS
I disagree entirely with the gravamen of your
argument. To get an up-or-down vote on three
judicial nominees seven of the "gang of 14"
have gained nothing in return except the absurd
assurance that a filibuster will only apply
in "extraordinary" circumstances. We've all
seen that term and "extreme" applied to all
highly qualified conservative nominees. It's
not defined and is left up to the subjective
arbitrary and capricious will of Democrats who
clearly support unconstitutional use of the
filibuster to defeat nominees. Also, you might
read Andrew McCarthy's article in today's NRO
and how he explains that these Republican
nitwits have agreed to a blatantly UNCONSTITUTIONAL rendering of Article II,
Section 2 which in effect inhibits executive
authority and provides a permanent weapon to
opponents of nominees. Yes, many of us are in
campaign mode because we believe that elections
should mean something. What this is all about
is the Supreme Court. Those of us who believe
there is absolutely no constitutional basis
for a filibuster of judicial nominees can easily
imagine two or more activist judges having
an irreversibly negative impact on the nation's
culture for perhaps more than a generation.
And all because of an archaic and anachronistic
Rule 22 which ought not to have any role in
a democratic republic. And I don't care about
when Republicans are in a minority. It's JUST
PLAIN WRONG -- no matter whose ox is being
gored. But perhaps the Republicans are simply
not worthy or capable of being a majority
party. I'd have had much more respect for them
if they'd acted on principle and lost rather
than caved. Right now they're a pathetic
and contemptible spectacle for all to behold.