The deal’s precarious future

The “Group of 14” is taking a victory lap today and I can’t say I blame any of them. They struck a deal that seemed highly unlikely, they put a stop to the nuclear option crisis, and each of them is now a media darling. (The press inevitably fawns over anyone who supposedly bucks the far-left and far-right.)

And while I don’t want to rain on anyone’s parade, it’s worth pointing out that yesterday’s “compromise” may have a limited lifespan.

The arrangement is built on an insecure foundation. Not only is easy to imagine circumstances that will put this deal to the test, I’d be very surprised if it didn’t happen very soon.

Dems, for example, may feel it necessary to filibuster a Bush judicial nominee, arguing that the nomination represents an “extraordinary” circumstance. If Republicans in the Group of 14 believe there’s nothing extraordinary about the would-be judge, we’re right back where we were last week. Indeed, Sen. Mike DeWine (R-Ohio), one of the seven Republicans who signed the deal, was foreshadowing almost immediately after the deal was announced.

“Some of you who are looking at the language may wonder what some of the clauses mean. The understanding is — and we don’t think this will happen — but if an individual senator believes in the future that a filibuster is taking place under something that’s not extraordinary circumstances, we of course reserve the right to do what we could have done tomorrow which is to cast a yes vote for the ‘constitutional option.'”

This is hardly the talk of a negotiator with confidence in his achievement.

Rutgers University’s Ross Baker, a political scientist and Senate expert, said, “I think they did what the Senate very often does. They kicked the can down the road. They basically postponed a crisis and set up the predicate for another one in the future on the Supreme Court nomination.”

I think this is absolutely right. Bill Frist pushed the Senate the edge of a cliff and the Group of 14 brought them back a bit. It’s a temporary resolution — and there’s nothing in the agreement that will stop anyone from pushing them right back to the precipice again.

Indeed, when I look to the other end of Pennsylvania Avenue, I expect Bush to go out of his way to challenge this deal as soon as possible.

The Bush White House has taken an antagonistic attitude on judicial nominations from the beginning. There’s never been a hint of concession or compromise — the president taps the most radical would-be judges he can find, he picks the courts where they’ll have the most impact, and he dares Dems to stand in his way.

With this in mind, the president, who didn’t want to see yesterday’s deal come to fruition anyway, has plenty of incentive for mischief. Bush could start cooperating with lawmakers over the nominating process, as all of his predecessors have, but does anyone, anywhere, seriously believe that will happen?

There are still judicial vacancies for which Bush has not yet nominated anyone, and if he were anxious to undermine the compromise, the president may very well pull a Caligula and nominate his horse (or an equally unqualified human).

Dems will say the equine is a poor choice, Senate Republicans will express their support for the nominee, and the right will complain that the left must be “anti-horse” for even questioning the selection. Specter and Hatch will go easy on the horse during confirmation hearings, Dems will threaten a filibuster. The GOP will insist the Dems are abusing the agreement and the nomination isn’t “extraordinary” enough, and all of a sudden, we’re right back where we were.

The horse analogy is obviously meant in jest, but these general circumstances hardly seem farfetched. The Bush White House, I suspect, wants to push the Dems to their breaking point — and then push some more. The way to do that would be to nominate a jurist who Dems feel is beyond the pale (Federal Appeals Court Judge Jerry Falwell?) and who Republicans believe deserves an up-or-down vote.

It may not be today or tomorrow, but this deal will be put to the test before much longer.

It does point to a lack of support for the “Nuclear Option”.

  • I agree that Bush will attempt to force this issue. I can’t help but wonder just what private agreements these fourteen senators made between themselves, and how well this deal will hold up under the pressure that is certain to come.

    Yet, I found it encouraging that the agreement contained a rebuke to Bush, and reminded him of the Senate’s privilege of advise and consent.This was the most incomprehensible part of this war to me; why would any senator agree to hand over more power to the greedy maw of the office of the Presidency?

  • The Senate “moderates” may have punted, but each time the situation gets so close to the edge, Frist’s credibility and effectiveness is eroded. It’s true that similar circumstances will arise in the future, possibly the near future. But Frist will never again be able to blithely talk about the nuclear option as though he had the power to trigger it.

    THAT’S good news.

  • So let me get this straight — Bush, whose entire philosophy is grounded in (a) money and (b) war and hardly any of it in (c) social issues — is going to prevent himself from becoming a lame duck by kowtowing to the religious right again (remember how unenthusiastically he backed the FMA?), and rebuking the centrists? I don’t see it. I agree that he is a “radical” in his way, and I understand why you think he has to challenge the deal — but the other way of looking at it is, if he doesn’t heed Lindsey Graham, he can start quacking.

  • Yes, but: see the comments on THink Progress today to see whay DeWine may not have the power he thinks.

  • Hell, Frist was whining last night in the Senate after the Agreement was announced, and then continued his whining this morning when he announced, “The nuclear option is still on the table, and I’ll use it whenever filibusters are used to prevent up and down votes.” Reid quietly and, quite effectively, then chastised Frist for not understanding what happended, which is that Frist got blown-off by the moderates.

    And I have very little reason to trust Lindsay Graham or Joe Lieberman, but Graham’s statement promising — and insisting upon — greater cooperation by the White House is the REAL reason that the Dems signed on to this Agreement. This goes back to Clinton when Hatch wouldn’t even give a Hearing to his nominees.

    I think that there is an unwritten “gentleman’s agreement” that the White House’s failure in the future to truly seek Congress’ advice BEFORE a nomination is made will, by itself, be “extraordinary circumstances” that will permit filibusters and prevent the nuclear option, all under the terms of the Agreement. Any other analysis of ALL of the written and verbal statements of the Group of 14 surrounding this compromise misses the point completely.

    If Bush decides to continue his “in-your-face” challenges to the Senate (renominating the 7 previously-filibustered and rejected candidates being the most egregious), he will get smacked down even more — this Group of 14, especially the long-serving ones like Byrd and Warner, care too damn much about the prerogatives of the Senate as an independent and integral part of our republic.

  • I wonder what effect the looming mid-term elections might have on this? Is there a point at which Republicans won’t have the guts to pull the trigger because it would have too much election fallout?

    If so, making it through the short term might be the only thing that matters.

  • I’m hoping that shrewd Harry Reid allowed this compromise to go through on the Dem side because he knew that even though the crisis might only be postponed and not averted, the collatoral damage to Frist and Dobson would be painful enough to the extremist agenda that it would leave them significantly weakened and less effective down the road.

    That’s what I hope, too.

  • Owen’s approved, 81-18.

    Reuters – The Republican-led U.S. Senate, with a new compromise in hand, on Tuesday cleared the way for a confirmation vote on one of President Bush’s most controversial and long-stalled judicial nominees.

    On a vote of 81-18, the Senate moved to end debate on Bush’s bid to put Texas Supreme Court Justice Priscella Owen on the 5th U.S. Court of Appeals.

  • knobboy, is there any word on when the “up-or-down” vote will actually take place? You and I know that the 81-18 vote (which ended at 12:30 p.m. EDT) was to invoke cloture, which solely was to end the debate on her nomination. It was NOT the confirmation vote.

    However, I understand that under the Senate Rules a successful cloture vote still requires (or at least permits) “up to” 30 hours of additional debate on the nomination. And from the horseshit that Frist was spewing this morning about trying to cram through ALL of the pending judicial confirmation votes AND Bolton this week, Reid basically told Frist that he was nuts. Any ideas on when the Owen vote will take place?

  • So basically the republicans got three nominees through the process and can institute the nuclear option anytime they want. How is this a democratic win!

  • It’s a Democratic win because a group of Republicans have betrayed their leader publicly in order to maintain the traditions of the Senate. By so doing they have declared that they are not to be taken for granted by Frist and Dobson. This makes any further bellicosity by Frist sound absolutely INSANE.

    Technically, of course, nothing is different from yesterday. The political reality now though is that Frist has been notified he has to watch his back.

    Score one for the good guys.

  • Comments are closed.