Dangerous Dan Thoughts and musings on the world


Judicial Deal

Filed under: Politics — Dangerous Dan @ 1:42 am

I'm shocked, shocked!, that a deal went down last night for avoiding the nuclear option and nobody in the blogosphere has covered it. Eh, what's that? I should hit the refresh button?

Everybody is all a twitter about this deal and the vast majority of the conservative folks are tearing their vestments, moaning tales of woe, and decrying the spinelessness of the Senate Republicans (Professor Bainbridge has a nice rundown of such sites). I'm not one of these people. I think the deal was a fine idea and was a political win for both sides, but was actually a greater loss for the Democrats. What seems to have gotten lost in much of the teeth-gnashing is that the Repubs got the greenlight for putting up three jurists to a vote that had been persistently blockaded by the Dems. That's a definite win for the Repubs and a loss for the Dems as these are the same judges that they had spent gallons of ink and hours of soundbites calling extremist and out of the mainstream. The Dems gave in on these three.

Now it's too true that they've made no filibuster commitments on the other two judges or on any future judges. It's also true that because of this, the Repubs have likely only postponed an eventual showdown. I just don't see this as a sign of weakness on Frist's part. He got three judges in for a vote and if and when the time comes to threaten the nuclear option on future filibustering, he can certainly still do that. That bullet is still in his pocket and he didn't have to give up anything up for those three judges (you may disagree on this last point, but read on).

Others have complained that the Dems got the upper hand on the Repubs because of the clause that 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.

The worry is that this is sufficiently vague so that the Dems can call anything extraordinary circumstances. And they're right, it is vague enough for that. But they also bemoan the following clause in that they think the Repubs have bound themselves to avoid rule changes:

In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rule changes [that would lower the threshold for cloture].

We're talking politics people. This isn't a lease or a legal contract. This agreement will not be judged in a court of law, it will stand before the court of public opinion and it is to that court that the two sides will make their cases in the event of disagreement or a grievance of one party against the other.

The second clause has just as much wiggle room as the first one does; it’s as vague as the first. It can reasonably be interpreted that if the Dems violate the spirit or continuing commitments of the agreement, then the Repubs can execute a rule change. What would violate that? Well, filibustering judges for anything other than extraordinary circumstances, of course! While the Dems have the latitude to call just about any circumstances for judicial filibustering extraordinary, the Repubs can just as easily turn around and claim there's nothing extraordinary at all about them, that the Dems are therefore in violation of the agreement, and that they, the Repubs, can accordingly call up the nuclear option.

The only situation in which this gambit won't work is a Supreme Court nominee, which would be extraordinary by anybody's definition. I seriously doubt, though, that the Dems are going to risk filibustering in this scenario. The Supreme Court nominee gets far too much national attention and the Dems risk a great deal of blowback if they filibuster a reasonable nominee on the grounds that he or she is an extremist. On such a high-profile target, the public will grow impatient with parliamentary limbo tactics, especially if the pick is a popular one. I think the only reason the Dems have been successful with their filibustering so far is that the vast majority of the public is much tuned into the kerfuffle over the appeals court nominees. I imagine they’ll pay more attention when the Supreme Court is involved.

This agreement is all about political positioning and both sides left themselves so much semantic room to maneuver that they haven’t much changed the state of affairs from what it was previously, except that three judges will now get a floor vote. Expect the fun in the future to hinge on that ‘extraordinary circumstances’ bit. The Dems will try to convince the public that the circumstances are extraordinary and the Repubs will try to convince John Q. that they’re not. Whoever is more convincing will carry the day.

Decision '08 has a roundup of other blogs that also don't think the compromise was a disaster. It's being called the Coalition of the Chillin'.
Just chillin'.


  1. I do not think that it was a disaster, but I do think it is time for a constitutional ammendment to make sure that every presidential nominee be voted upon within a reasonable amount of time. I think giving the senate six months to a year to advise and consent on nominees is more than enough time. Any nominee not given a vote should be automatically approved.

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