Now that the cabal of seven Republicans and seven Democrats have finished with their 48 hour backslapping and self-congratulatory marathon, the dust is beginning to settle on the "Memorandum of Understanding of Understanding on Judicial Nominations" (signed copy of the document here). It's perhaps a good time to take a closer look at the deal and it's implications for the future.
It's often said that if you anger both those on the right and the left that you must be doing something good. This deal certainly caused a fair number of people on both sides to go nuclear, even though it seemed those on the left were doing more crowing than usual. But on calmer reflection, or perhaps due to the overwhelming negative reaction from conservatives, Republicans have begun to spin the matter in a more positive direction.
The Good
In what was described as a "Top Line Message On Judicial Compromise" my county Republican Party passed along what appears to be talking points from somewhere which state in part:
It is a positive step that after enduring years of harsh,unjustified attacks, Justice Priscilla Owen, Justice Janice Rogers Brown, and Judge William Pryor will finally get an up-or-down vote on the Senate floor.
These highly qualified judicial nominees never should have been filibustered in the first place.
It is also a positive step that signatories of the compromise agreement have agreed not to filibuster judicial nominations in the future except under extraordinary circumstances.
Well, that's all very encouraging, as far as it goes, and it is echoed in blogs like Red State and the much respected Opinion Journal which had this to say:
The left is crowing and the right is carping, for the most part, about last night's deal by 14 senators, seven from each party, to avoid the "nuclear option"--a Senate vote to abolish filibusters of judicial nominees. We beg to differ. We favor an end to the obstruction of judicial nominees via filibuster, and it strikes us that this agreement is likely to accomplish that, at least for this Congress (after which the agreement expires). If so, the nuclear option will have shown its value as a deterrent.
The agreement binds the 14 senators who signed it to vote for cloture (i.e., against a filibuster) of the three remaining nominees the Democrats have most demonized: Priscilla Owen, Janice Rogers Brown and Bill Pryor. The compromisers expressly "make no commitment to vote for or against cloture" of two additional nominees, William Myers and Henry Saad. The status of two other nominees, Brett Kavanaugh and William Haynes, is unclear. Early this afternoon the Senate voted 81-18 for cloture on Owen's nomination; an actual confirmation vote should come by tomorrow.
Do you feel better yet?
There's a whole raft of opinion covering the spectrum At Real Clear Politics:
A New Beginning in the Senate? - David Ignatius, Washington Post
In the Long Run a Good Deal For Conservatives - Linda Chavez, Townhall
Republicans Had the Votes But Not the Guts - Thomas Sowell, RealClearPolitics
The Right Cries Foul As Bush Is Foiled - Joe Conason, New York Observer
McCain Sells Out The GOP - Pat Buchanan, Creators
The Senate's Real Leader is John McCain - David Broder, Washington Post
Senate's Third-Party Caucus Restores Power to Center - Dick Morris, The Hill
God Save U.S. From Self-Appointed Saviors - Tony Blankley, Washington Times
Bush and Frist Got What They Wanted - Robert Kuttner, Boston Globe
A Democratic Victory and GOP Setback - Jules Witcover, Baltimore Sun
More on "The Deal": DavidCorn Mark Davis Ronald Cass Robert Steinback
Is Conservative Republicanism Slipping? - Howard Fineman, Newsweek
This "deal" will make it more difficult for Democrats to filibuster. It also pretty much greases the skids for confirmation of some very fine judges: Owen, Brown and Pryor. Democrats allowing that to occur after basically calling these three every name in the book exposes their transparent political hypocrisy.
Feeling any better yet?
The Bad
So if this isn't such a bad deal and it's all been a bunch of bellyaching from rightwingers who wanted Reid to glow a uranium mine in Nevada, then why all the confusion about the deal? First of all, the Senators like my own Lindsey Graham, must have known that handling an issue this radioactive would have some fallout. Their attempt to explain it has been lame and confusing; perhaps because they seemed to be spending all that time instead by congratulating each other.
Second, the deal says that Dems will not filibuster Ownen, Brown and Pryor. The assumption is (though no one really knows) that the remaining nominees Saad and Meyers could be filibustered.
Third, the seven Democrat signatories promise not to filibuster, or presumably permit a filibuster from their fellow Democrats on future nominations. The seven Republicans also promise not to use the nuclear, or more correctly the "Bryd" option, thus named because Senator Byrd used this exact same tactic when he was Majority Leader.
The seven Democrats who signed onto this deal are not from the rabid wing of the Democrat Party, even though the former Klansmen Byrd was very involved in recent coordination with the tie-dyed hippie freak, tree worshiping neo-socialist out to impose their views on the rest of us organization: Moveon.org.
So the HOPE is that the understanding of "extraordinary circumstances" would not be abused in the same way that Democrats with a greater reality challenged perspective have struggled with such concepts as the meaning of the word 'is.'
Fourth, the battle here is just a warm up to a contest royale over a coming nomination to the Supreme Court. Whether it's more difficult to filibuster or not, you can expect the moonbats to come out of their holes, take a leave of absence from their local coven and hit the streets screaming. This deal will do nothing to prevent the launching of another scare, fear and hate campaign directed at whomever the President nominates.
The Ugly
And that brings us to the ugly part of this deal. The Constitution of the United States is pretty clear as it relates to the powers of the President to appoint judges and the Senates role in confirming them:
[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.
In the deal, Senators define that phrase this way:
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.
Again we're down to defining words like "extraordinary" or "advice." But the Constitution locks in a process here...the President "shall nominate" is FOLLOWED by the "advice and consent of the Senate." What the deal suggests is that the President should consult the Senate BEFORE making a nomination.
Anyone who doesn't see that as an unconstitutional power grab by one branch encroaching on the constitutional authority of the other is probably not going to have a hard time finding "extraordinary circumstances" to oppose a nominee.
With all the high talk of compromise and "let's all get along" this constitutional revisionism STINKS! The Senate has a long and sorry history of interfering with the constitutional role of the Executive branch. A good size chunk of the members in that body think they could do a better job than the President, even though most of them couldn't get elected dogcatcher outside of the comfort of their home-state's political machine.
The last bit of good news in this shabby deal is that the President is perfectly free to totally ignore this suggestion by the gang of fourteen. It has no weight in law whatsoever. As for the rest of the deal: only time will tell.
The Fallout
I found some comfort in the statements of my Senator, Lindsey Graham that this deal means that a nominee being conservative would not constitute extraordinary circumstances. It's interesting that the most respected newspaper in South Carolina: The State, which endorsed his opponent, now endorses his participation in the deal.
Will Senator Graham pay a political price in 2008 when his first term expires? There is talk of a well funded challenge by a respected SC conservative... Again, time will tell. I imagine that Senator Graham will continue to cultivate the local party officials who no doubt receive special consideration of their needs. But what about the huge numbers of conservative voters who are not part of that gravy train?
We certainly do not want Lindsey Graham to be known as the "John McCain" of South Carolina. He was after all, John McCain's campaign chairman in 2000. Readers may recall in 2000 when John McCain and his "Straight Talk Express" hit the conservative political firewall in SC like a rotten tomato tossed onto a brick wall. A note to McCain: come on down here in 2008 and that firewall will look like a picnic!
Senator George Allen of Virgina may reap the greatest political windfall from this imbroglio in South Carolina. A solid conservative, Allen calmly and firmly supported the "Bryd option" which would have put a stop to the Democrat's filibuster nonsense once and for all. His position here was immeasurably strengthend and he will likely find a willing audience for his message should he care to pay us a visit and discuss a prospective presidential bid in 2008.
The Last Word
If Senator Graham and others dismiss the opposition to this deal as nothing more than an orchestrated campaign from the religious right... They are wrong. Speaking for myself and many, MANY other conservatives, we are no tools of James Dobson and groups like Focus on the Family. The outrage over this sham deal, which weakens the Constitution, is not the sole intellectual property of the religious right. It is a matter that concerns each of us who hold traditionalist views of the Constitution.
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