Posted 7:15 PM by Robert

Another Senate Mess

Fourteen Senators, seven from each Party, have reached a deal to avoid an immediate confrontation over the filibustering of judicial nominations. According to media reports, Democrats agreed to allow final confirmation votes for Priscilla Owen, Janice Rogers Brown and William Pryor, named to appeals court seats. "In light of the spirit and continuing commitments made in this agreement," Republicans said they would oppose any attempt to make changes in the application of filibuster rules. The agreement reportedly provides that future nominees to the appeals court and Supreme Court should "only be filibustered under extraordinary circumstances," with each Democrat senator holding the discretion to decide when those conditions had been met. Presumably, Republicans hold the discretion to decide for themselves whether the Democrats actually abide by the deal in good faith. So if the Republicans decide for themselves that the Democrats are filibustering in other than "extraordinary circumstances," the Republicans are free to abolish the filibustering of judicial nominees.

What the heck are "extraordinary circumstances" in the meaning if this deal? Well, one place one might look for clarification is in the fact that in the deal there is "no commitment to vote for or against" the filibuster against two other conservatives named to the appeals court, Henry Saad and William Myers. Does this mean that the Senators involved considered these nominations to satisfy the "extraordinary circumstances" requirement? If the deal were consistent, then the answer would probably be "yes." Of course, there may have been generalized pressure on mutual face saving grounds to split the group of pending nominees into "goes" and "no-goes" just to have the deal manifest obvious compromise. In that case, the Senators involved in the deal may consider the Saad and Myers nominations to manifest no "extraordinary circumstances" - but still have permitted their filibustering as a sacrifice to make the deal.

Despite Senator Reid's McCarthyite slur on Mr. Saad, there is nothing particularly suggestive of what in ordinary language might constitute "extraordinary circumstances" about either of the Saad or Myers nominations. And that doesn't bode well for the functioning of this deal, even for immediate future judicial nominations.

Mostly, this deal seems to reflect the deep fear some Senators have of clear, public solutions and their equally deep faith in back room deals.

POSTSCRIPT: Perhaps the best way of seeing the intensely peculiar quality of this Senate "deal" might be to focus on the fact that it only meaningfully comes into play where a simple majority of the Senate would approve a nomination. Can there be "extraordinary circumstances" in such a case - as ordinary, reasonable, informed people would use such a term? Well, yes - but only where those "extraordinary circumstances" are a lot more extraordinary than any the Senators who crafted this deal would care about!

The "extraordinary circumstances" the Senators probably care about are what ordinary people would consider to be very ordinary circumstances. For example, suppose the candidate is to fill a judgeship in a state both of whose Senators don't approve of the nomination! (California?) To ordinary people, that's no big deal - it's part of the extraordinary circumstances of Washington. But to a Senator those are likely "extraordinary circumstances" indeed. Senators have lots of expectations like that when it comes to court of appeals nominations - but not so many with respect to the Supreme Court. How does one convincingly argue on ideological grounds that a Supreme Court nomination poses "extraordinary circumstances" where a majority of the Senate supports the candidacy? That would be tough. Not impossible in every case, but really tough.

So this deal may not be as good for the Democrats as many commentators are suggesting.

UPDATE: Howard Dean says this about the deal:

"It's a real test of whether this is a real long-term agreement. That will come when we find out if the president consults with the Democrats" before sending future nominees to the Senate, including a possible Supreme Court choice.

Really? Is that what "extraordinary circumstances" amounts to? - the president's failure to consults with the Democrats?

Well, if what Dr. Dean says is true, the deal is a huge Republican win.

But that's the problem with having a fruitcake like Dr. Dean as the party head. He almost certainly hasn't a clue of what he's talking about. He doesn't say that he's spoken to a single one of the seven "moderate" Democratic Senators who engineered the deal about its terms - which probably means he knows little more than anyone else. Having no clue has never stopped Howard Dean from shooting off his mouth on a topic in the past, and this example is probably no different.