Federal JudiciaryPolitics

THE FILIBUSTER DEAL

In a deal by centrist U.S Senators a compromise was reached Monday night that cleared the way for confirmation of many ofPresident Bush’s stalled judicial nominees, left others in limbo and preserved venerable filibuster rules. Read about it here:

Under the terms, Democrats agreed to allow final confirmation votes for Priscilla Owen, Janice Rogers Brown and William Pryor, appeals court nominees they have long blocked. There is “no commitment to vote for or against” the filibuster against two other conservatives named to the appeals court, Henry Saad and William Myers.

The agreement said future judicial nominees should “only be filibustered under extraordinary circumstances,” with each senator — presumably the Democrats — holding the discretion to decide when those conditions had been met. Officials said the pact was intended to cover the Supreme Court as well as other levels of the judicary.

Apart from the judicial nominees named in the agreement, Reid said Democrats would clear the way for votes on David McKeague, Richard Griffin and Susan Neilson, all named to the 6th Circuit Court of Appeals.

Democratic officials, speaking on condition of anonymity, suggested that two other appeals court nominees whose named were omitted from the written agreement — White House staff secretary Brett Kavanaugh and Pentagon lawyer William Haynes — might be jettisoned. Republicans said they knew of no such understanding.

A lot give and very little take from the RIGHT side of the aisle.

The Republican “centrist”brokers (some are calling them turncoats) may have achieved a compromise but most are now damaged goods in the Republican Party – in particular John McCain and Lindsey Graham. Actually, those are dead meat for any further political ascendency. In fact, they may have trouble getting a good seat at the next Republican National Convention.

But, the President achieves an up or down vote on a number of blocked nominees and Democrats really achieve the status quo filibuster rules (with a little curtailment) – a NET SMALL PLUS for President Bush.

A BIG PLUS for the federal judiciary. But, time will tell about other conservative nominees

H/T: Huffington Post

Update #1

Patterico has the text of the compromise agreement:

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. 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).

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).

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.

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.

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.

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.

We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.

Update #2

The Republicans Who Dealed:

McCain, DeWine, Snowe, Warner, Graham, Collins (update: Chafee who is not present)

Update #3

Comments around the Conservative Blogosphere:

Hugh Hewitt:

It is impossible to say whether this is a “terrible” deal, a “bad” deal, or a very, very marginally “ok” deal, but it surely is not a good deal. Not one dime more for the NRSC from me unless and until the Supreme Court nominee gets confirmed, and no other filibusters develop. I won’t spend money on a caucus supporting organization when the caucus can’t deliver a majority. Mark Kennedy and other Senate candidates with spines, but not for the NRSC.

Captain Ed at Captain’s Quarters:

What does all this tell us?

1. Saad got tossed under the bus, although it may come from a failed confirmation vote rather than a filibuster, no matter what Reid says. If Reid demands a filibuster and all seven Democratic signatories support it, it will qualify as “bad faith,” resulting in a resurrection of the Byrd option. I think all seven GOP signatories agreed to oppose Saad in a floor vote.

2. Myers may also have been tossed under the bus, although it looks from this that it may still be left to the individual conscience of the Senators.

3. Other than that, it appears that we have returned to status quo ante with an implicit admission from the GOP that filibusters are legitimate, and a matching one from the Democrats that they abused it. “Extraordinary circumstances” will probably be deciphered as ethics problems and not ideology, although the language after Part II-B seems to warn the White House about nominating strict ideologues to the bench from now on.

What we don’t know is how this affects the rest of the nominees in the pipeline. One has to assume that the agreement explicitly names all those considered to have issues, and that all other nominees will be treated in accordance with the new rules from the centrists. That will prevail for as long as they can remain united in defense of their agreement.

In short, this could be merely objectionable and not a debacle, depending on how the GOP signatories interpret “extraordinary circumstances”. One must suspect that this has already been defined confidentially within the group, and like Sean Rushton surmises, ideology doesn’t play a part in it any longer. Under no circumstances can this be seen as a good deal for the Senate majority or for Constitutional rule. The net effect is that an even smaller minority in the Senate has hijacked the confirmation process than we saw during the filibusters — and like all tyrannies, we can only hope for benevolent despotism rather than disaster.

And we can thank Bill Frist for his lack of leadership and resolve for taking a majority and turning it into a minority. Not One Dime for the NRSC as long as Frist remains majority leader, or for the Seven Dwarves ever. Patterico is on board with that pledge as well.

Michelle Malkin:

Related: Breaking: Filibuster compromise
Patterico makes a pledge
– Round-ups: Joe Gandelman, Pardon My English, Conservative Outpost
– More Photoshop-inion from Slublog: Frist as Chamberlain.
– Captain Ed’s sober deconstruction of the deal and a vow: “Not One Dime for the NRSC as long as Frist remains majority leader, or for the Seven Dwarves ever.”
Hugh Hewitt: “I won’t spend money on a caucus supporting organization when the caucus can’t deliver a majority.”
Mitch Berg’s open letter to Sen. Bill Frist: “You suck”

***
Let the MSM drooling over the “maverick” moderates begin…

Knight-Ridder: “The negotiations were led by McCain, a Republican maverick known for bucking Bush and his GOP leaders…”

AP: “The deal was struck around the table in the office of McCain, the Arizona senator who ran against Bush in 2000 and must now answer to angry conservatives. His advisers say they suspect that the most partisan conservatives were not going to back McCain anyhow, and that the deal bolsters his image as a maverick.”

LA Times: “In a rare act of compromise on Capitol Hill, a maverick group of seven Democrats and seven Republicans reached an agreement today that forced the Senate leadership to stand down from a confrontation over President Bush’s nominations to the federal courts.

A diarist at RedState bites back:

Thanks, John McCain. Thanks for showing us that there really are worse things than allowing 45 Senators to control a body of 100. We could, for instance, have 12 Senators control a body of 100, which is exactly what we saw happen tonight with the “compromise” solution authored and championed by everymedia’s favorite “Maverick.” Forgive us if we’re less than thrilled at the prospect that this “centrist” coalition (including Robert Byrd, of all people!) wields so much power.

***
Power Line’s Paul Mirengoff sets Sen. Lindsay Graham straight:

I heard Senator Graham claim that he still has the right to vote to change the rules if the Democrats abuse filibusters. But, in light of the language of the deal, this statement appears to be disingenuous. Graham doesn’t get that right (which he probably doesn’t want anyway) until the next Congress. The Democrats get to skate past their latest defeat at the polls and hope for better things in 2006. Why didn’t Graham and his crew simply back off from the “nuclear” option for the time being, and see if the Democrats started behaving more responsibly? The comparative wisdom of that approach is apparent from the fact that Graham is trying to pretend that this is what he did.

I’m also doubtful that, even if the Republicans hold their own or gain seats in 2006, they will put an end to the filibusters. As noted above, they just don’t have it in them.

The claim by Senator Graham and others that we need to get this issue behind us in order to proceed with the Senate’s business is laughable. The Democrats will be emboldened by this “compromise” and will continue to obstruct. This Congress will accomplish little beyond what it already has, and that isn’t much.