May 24, 2005
The moderate "Gang of 14" senators "saved the day" last night, agreeing to invoke cloture and thereby assure a vote on judges Priscilla Owens, Janice Rogers Brown, and William Pryor. However, Judges William Myers and Henry Saad have been "thrown overboard," as Rush Limbaugh put it. The fact that Sen. Byrd was included among the "vital centrists" -- standing alongside McCain, Snowe, Lieberman, and Landrieu last night -- was a troubling initial sign that nothing has really changed. I listened closely to each senator's statement in the press conference, and I'm not entirely convinced by Senator Warner's explanation. He said he kept asking pro-rule changers what the consequences would be in the Senate, and they couldn't give him a satisfactory answer. Indeed, Who knows? Who can fathom the true intentions of the shrieking minority faction? Their posture seems to have spooked the reasonable folks into backing down. Ahh, the burdens of responsibility, turning the other cheek for the Greater Good...
In today's Washington Post, E.J. Dionne articulated a good reason for maintaining the old filibuster rules, that the supermajority requirement gives the Senate more clout than it would otherwise have. (All members of the Senate share a stake in this clout, to some extent.) The logic behind this effect is explained in Robert Putnam's "theory of two-level games," in which the principals negotiating on behalf of one country or organization gain more bargaining leverage when they can convince their counterparts that domestic opposition prevents them from delivering any more concessions. Dionne also pointed out the political agenda behind this showdown:
Frist is waging this fight because he wants to be president and needs support from social conservatives. But especially in a time of terrorism, politicians worthy of the presidency don't toss around the word "assassinate" with the alacrity of a small-market radio host. The Republican moderates knew this.
True, but Sen. McCain was also acting on behalf of his own presidential aspirations, albeit aimed at a different contituency. I would have had more confidence in Frist and other conseratives if they had adopted a more mature tone, agreeing to the kind of terms that a hypothetical detached, disinterested observer might suggest. The irony about this compromise deal is that postponing the conflict may only whet the appetite of both the secular Left and the Christian Right for an even bolder stance, making a reasonable long-term compromise even less likely when the next judicial showdown looms.
Having mixed feelings about this issue, I am in part relieved that something was accomplished without resorting to extraordinary prodedural means. Lost in the shuffle, however, are the merits of the basic issue of partisanship in the Federal judiciary, which is clearly out of kilter, in my opinion. Democrats have been pretending falsely that the filibuster is a sacrosanct tool by which judges pass muster among a broad spectrum of political opinion, when virtually the only case of a prominent appeals court judge being blocked by a filibuster was Abe Fortas, LBJ's ethically challenged Supreme Court nominee in 1968. Another commonly-propagated distortion of the facts is that virtually all of President Bush's judicial nominees have been approved by the Senate, but the vast majority of those nominees were for district courts, the lowest Federal level. It is the appellate court level where the important cases are decided. Among the compromise solutions that were being discussed was a formal pledge by both party leaders to release the members of their respective caucus from the obligation to vote with their party's leaders. That would have been a healthy move, depoliticizing the judicial nomination process.
Who blinked first? To me, that question is less important than who blinks next. As with much of political and social life, the ultimate results of this bargain will depend on what people make of it. That's why it's more important than usual to see how pundits of various stripes are weighing in on this.
Glenn Reynolds: "As I've said before, I'd probably care more about this issue if Bush looked likely to appoint some small-government libertarian types to the bench. Since he doesn't, I don't."
John Hinderaker: "And, rest assured, there will be a next time. I'm afraid the Dems have staved off a losing vote tomorrow, and lived to fight again another day, on a nominee less impregnable than Priscilla Owen."
Kevin Drum: "I guess I'm puzzled. ... As for the agreement to filibuster future candidates only under "extraordinary circumstances," well, who knows? That could mean pretty much anything, couldn't it?"
Josh Marshall: "It seems an awfully bitter pill to forego the filibuster on both Brown and Owen, particularly the former. And the main issue isn't resolved so much as it's delayed."
"Jane Galt" (via Phil Faranda): "The fact is that Republicans are going to shove conservative judges down liberal throats because they can, not because there is some cosmic principle of justice involved."
Well, I acknowledged that Frist's move was in part a power grab, on April 28. But as any realist knows, politics always involves both power and principle; "Jane Galt" merely invokes the classic false dichotomy of idealists. Moreover, both sides regard promotion of their own ideologies as a matter of principle. It is now clear that both sides went a bit too far out on a limb in this historic showdown, and party leaders Frist and Reid were equally chastened. The strident Byrd at least had the political savvy to join the centrists at the last minute, thereby gaining greater influence for the next round. If reports of secret understandings (Sen. Lindsey Graham?) about voting against specific judicial candidates turn out to be true, there may be hell to pay. Anyway, it seems clear that observers from both sides agree: The peace that has been so dearly won is only temporary. Stay tuned.
* NOTE: This title, drawn from Neville Chamberlain's vain boast after Munich in 1938, is not intended to compare the Democrats to the Nazis, as Sen. Rick Santorum did, but merely to suggest that the deal fails to resolve the underlying issue and therefore merely postpones an inevitable future battle.