It depends on what the meaning of ‘compromise’ is

April 25, 2005

When it comes to judicial nominees and the nuclear option, the word of the weekend was “compromise.” Just yesterday, David Broder floated his idea for his “judicious compromise“; Bill Frist said he “intends to offer a compromise”; and Joe Biden said Dems “should compromise” and “let a number of [these controversial judicial nominees] go through.”

This talk may sound encouraging to those who want to avoid the nuclear-option fight that remains on the horizon, but there’s a reason there has been so little progress towards a compromise thus far. Let’s step back and consider the competing agendas here. This is what the Dems want (in this order):

1. To stop Bush from nominating right-wing reactionaries to lifetime positions on the federal judiciary

2. To maintain the right to block the worst of the worst of these nominees, when necessary, through filibusters

3. To prevent Republicans from benefiting too much from having blocked 60 Clinton judicial nominees between 1995 and 2000

Conversely, here’s what the Republicans want (in this order):

1. To help the White House stack the federal judiciary with as many right-wing reactionaries as possible

2. To eliminate the right of Dems to get in the way of these nominees

3. To take advantage of judicial vacancies left open by having blocked 60 Clinton judicial nominees between 1995 and 2000

In every compromise that’s been floated, Dems for 0-for-3, Republicans go 3-for-3. Incentive to strike some kind of deal? Not so much.

Of course, there’s a very real possibility that Frist & Co. won’t have the votes to pull this off. There’s also a chance that Republicans will delay the whole thing to see if they can generate broader support. But let’s say neither of these happen and Frist is ready to execute the nuclear option this week or next. Is all hope lost? Is there any room for compromise? Maybe.

Kevin Drum mentioned an idea in passing a few weeks ago, but in light of all this discussion over “compromises,” it’s the only suggestion I’ve seen that has any merit.

If Democrats were to agree to eliminate the filibuster, the deal should take effect only after the 2008 election and should also include reinstatement of the old blue slip rules. That’s a fair trade.

I’m inclined to agree. I’m still very much inclined to support the filibuster rule, but if there was going to be a deal whereby every judicial nominee had to get an up-or-down vote on the Senate floor, then let’s have it take effect in 2009.

In truth, even this deal benefits Bush and the GOP, because Republicans will have successfully blocked 60 Clinton nominees over eight years, while Dems probably won’t get to one-fourth that many over Bush’s eight years. If anyone wins from this arrangement, it’s the GOP.

Still, the “Drum Compromise” (Kevin, can I call it that?) does a better job of any that I’ve seen in dealing with the three items on both parties’ agenda, listed above. Republicans get something they want (the end of judicial filibusters); the Dems get something they want (the ability to block the worst of Bush’s nominees). Unlike every other compromise solution that’s been offered, there’s some mutual sacrifice and mutual gain.

It’s not my first choice, but if there’s going to be a deal, it’s something I could live with.

April 25, 2005 at 2:25 pm

I appreciate the idea of some mutually acceptable compromise, but this one by Kevin Drum has a couple of flaws as I see it, one historical, the other one of image. First, the Repugs are lying — and the SCLM is universally allowing them to do so — when they say the filibuster has never been used to block a judicial nominee. This claim is now in at least its third version: the first was that the filibuster was “never used” before the Dems did it to Bush; the second was that it was “never used for someone above the trial court level”; and now the third is that it was “never used for someone who had majority support in the Senate”. All three of these conveniently ignore Abe Fortas, who was already on the SCOTUS and was up for Chief Justice, and Richard (?) Paez. Both were filibustered by the Republicans, and both failed to even get a vote in the Senate even though they had majority support.

So, to give up now is to change the rules simply because it is no longer convenient for the CURRENT majority; that is not reason enough, in the long view of history and the paramount purpose of protecting the minority in the uniquely-devised Senate, to piss it away merely to avoid a political showdown.

Second, though, is that once in the majority the Pepugs have jury-rigged the Senate rules, especially in the Judiciary Committee, to stymie Clinton’s nominations, and then when Bush came in to steamroll the Dems both on the Committee and on the floor of the Senate. And what did the Dems do about this — basically, jack shit. That is why the majority of the federal judges are those appointed by Republican Presidents, and we see the outcomes when traditional Democratic values (protection-type legislation especially) are challenged in court.

Now, finally, the Dems have a strategy — and the public overwhelminly supports that strategy — to protect the filibuster. Dems have been criticized by all who can find a microphone, a telephone or a keyboard, for not having or proposing any new policies that reflect who we are — and a fair amount of that criticism is valid. My answer is that no one is listening to the policy proposals we do make, because that is not valued in our current political climate.

We have a “bully on the playground” today (Bush and his thugs, and the radical fundamentalists, too); no one gives a shit about the reasoned arguments that the Bully’s targets might make. Everyone is glad that they are not at present the Bully’s target, and they are amused by the current victim’s distress and dire situation.

There is only one way to fight a bully when all of the other means of change are taken away or are useless: we have no one in power who is willing to enforce the rules of fair play, even when that is their reason for existing (Plame “investigation”, GAO report that video news releases are “illegal” by Bush says “fuck you, we’re going to keep doing it”, etc. etc. etc.). So, it is fight or flight time. We all know how the Dems took flight after 9-11, on tax cuts, on homeland security, even on the elections.

Finally, the Dems are standing up to the Bully, and we want to negotiate with him? What has Bush done to EVERYONE who has cooperated with him at one point but later disagreed with him? He kicks them out of his administration, goes on a campaign of personal destruction, and destroys them (remember Richard Clarke, Tom Daschel, the AARP? The all got fucked, and that’s just a few).

Giving in now, when we have the public on our side, when the “adults” in the Republican Party are starting to realize the wrong direction taken by their Congressional leadership, and we have the very real possibility of knocking the Bully on its collective ass — or at least make him walk with one hell of a sore set of balls for a very long time — and we want to blow it by “compromising”? When the hell did Joe Lieberman get back into the Democratic leadership? Compromising at this point is like a woman who knows she is going get raped — but she has a choice of whether lubication will be used.

This is the time to take the stand, and it makes me angry that we, the Dems, are still using the old mind-set that comity and reason stand for something in our political environment. That mind-set is dead until at least the time that the Dems take back the White House and the Congress. Until then, we are morons of the lowest order to turn our backs on these thugs and believe we won’t get fucked. Give in or fight, those are the choices. Just like on the school yard, those who give in to Bully may be pitied but never respected or followed; at least get bloodied in a fight with the Bully, you get respected and, even if you lose today, tomorrow you may have some followers who are tired of being the Bully’s victims, too, and feel encouraged to maybe join with you in the next fight.

I’ve been angry at the course of our country since Sciafe and others started pushing Whitewater, just waiting for this fight. To walk away now will be seen BY THE PUBLIC as weakness when we have a very strong hand (relatively speaking). We may not get many more chances, if any, to knock the pendulum back in the other direction. It would be shame to give that chance away by becoming Liberman-esque when we have victory within our reach.