Posted 8:16 AM by Robert

What's Wrong With This Picture

Mickey Kaus suggests that the Republican "nuclear option" may be defeated by Democrats caving on the appellate judge cloture vote, saving their big guns for the almost-sure-to-come Supreme Court fight:

Doesn't The Note's anonymous Blackberrier nail down why there will be no climactic vote upholding the "nuclear option" anytime soon:

"Deal not likely. But you may see d's break and vote for cloture and then we don't need deal and don't need nuclear option."

In other words ... Democrats will just decide not to filibuster each particular judicial nominee as that nominee comes up. That means those nominees will be confirmed, one-by-one, but Democrats will avoid setting an anti-filibuster precedent that would affect how Supreme Court nominees are considered later on. .... When a Supreme Court appointment comes up, of course, Dems would have to filibuster--but then Frist would have to set his precedent when everyone's paying attention...

Perhaps the most serious flaw in Blackberrier's proposal is that it is utterly inconsistent with a great many important (and very high decibel) positions taken by the Senate Democratic leadership for years, and would almost certainly strip the Democrats of most of the credibility they will need for that all-important Supreme Court dust up.

Is that just a nit?

Specifically, Blackberrier ignores the fact that the Democrats have spent years demonizing these very same mid-level appellate judicial candidates and hollering that Dems must filibuster now - for the very same reasons Dems filibustered each of this crop of candidates when Mr. Bush nominated them previously. And the Blackberrier's proposal would also allow the President to place his "farm team" of appellate court judges in position for that Supreme Court appointment - which would be a disaster the Democrats are fuming now and fumed when they last rejected these nominees. (The current media bring yet another hi-decibel Democratic howl: "The Senate is not a rubber stamp for the executive branch," [Democratic Senate leader] Reid said. "Rather, we're the one institution where the minority has a voice and the ability to check the power of the majority. Today, in the face of President Bush's power grab, that's more important than ever." - emphasis added. So, Senator Reid informs us, what's going on in the Senate today is more important than ever - and it's appellate judges they're considering today.)


But wait! Hasn't something changed? Isn't a strategic gimmick warranted now? Don't the Republicans have the nuclear option now? No - not until they actually successfully use it, because nobody will know for sure that the Republicans have the votes for their nuclear option until the last vote is cast. So nothing of huge significance has actually changed since the last time the Democrats filibustered these same candidates.

Worse for the Democrats, they have been arguing that there are effective remedies if Republicans do successfully use the "nuclear option." The Democrats say they will hurl the Senate into chaotic paralysis and bring the Republican outrage to the voters - who will, the Democrats have assured us these many months (nay, years!), storm the polls in the next election and whup the Republicans into line! If that's all true then it's important for the Republicans to be disciplined now, so that the sacred filibuster rule can be restored before the big Supreme Court fights. Do the Democrats now concede that the voters will not rise up over the elimination of the judicial filibuster (and probably will view it as a good thing) - and that the Democrats cannot paralyze the Senate over such a procedural reform without having lots of voters rise up against them? And, if most voters don't care much, then how do the Democrats explain what the heck they are doing with this Blackberrier's shenanigan, anyhow?

If the Democrats concede all that now they will have very little left regarding the nuclear option when they "have" to filibuster that Supreme Court nominee - they will have to depend mostly on sliming him or her. Can one imagine the Democratic Senate leadership attempting to use many of the same arguments against such a candidate that the Blackberrier's theory posits have already been used against the current crop of appellate nominees but are now to be abandoned in a procedural gimmick? My guess is that the Democratic and Republican leaderships have imagined such a thing - and that the resulting Democratic winces are matched by Republican grins.

What about this:

[Blackberrier's strategy would result in] no climactic roll-call vote, unless the Dems miscalculate. ... When a Supreme Court appointment comes up, of course, Dems would have to filibuster--but then Frist would have to set his precedent when everyone's paying attention, as opposed to now, when everybody isn't because it looks like an obscure insider rules change about mid-level appellate judges.

But the Democrats and their "friends" in the media have made very sure that people are now paying attention - and have been paying attention, whether they like it or not. For example, the New York Times is treating its readers to no fewer than nine articles on the subject datelined today, including wire service items (Heated Senate Showdown Opens On Judges and Analysis: Frist's Hardball May Backfire and Brown Seen As Model for Filibuster Fight and Pressure by White House Is Being Applied With Care and Fight on Judges and Filibusters Opens in Senate and Excerpts From Remarks on Filibusters and On One Side, Women and Blacks; on the Other, the Same and Fight on Judges and Filibusters Continues in Senate and Fight on Judges and Filibusters Opens in Senate).

Voters seem not to care much about what the Times and other Democratic media "friends" care about in this matter, but voters are pretty fully informed on the issue. So they'll know a lot about the Democratic inconsistencies implicit in the Blackberrier's proposal - and that will further strip the Democrats of credibility if they avail themselves of that proposal.

POSTSCRIPT: The above observations might be summarized this way:

If the Blackberrier's proposal is acceptable to the Democrats, they could achieve exactly the same benefits (no precedent until Supreme Court fight) without many of the costs (loss of credibility in Supreme Court fight) simply by agreeing to let all of the current crop of lower appellate court nominees through as part of a backroom deal, which really would largely stay below the radar of most voters. Many efforts have been made to broker such a deal - and those efforts have failed. That failure pretty well indicates that the Democratic leadership is aware of the huge costs of even a backroom deal letting these nominees through - and the costs of the Blackberrier's proposal would be much larger than those of such a quiet backroom deal. Indeed, the Blackberrier's proposal is so bizarre and spectacular that carrying out the proposal would itself attract huge attention and demands for explanations far beyond the underlying Senate fight - all of which could be avoided with a backroom deal. Yet, there is no such deal - and Senator Reid has squarely indicated that any deal that would let all of the current appellate nominations through (as the Blackberrier's proposal would do, of course) is unacceptable to the Democrats: "I've tried to compromise and they want all or nothing, and I can't do that," Democratic leader Harry Reid of Nevada told reporters after a meeting with Majority Leader Bill Frist of Tennessee.

UPDATE (Taranto's take):

Kaus makes an important assumption that strikes us as highly dubious: namely, that the Dems would be better off defending the filibuster during a Supreme Court nomination fight, "when everyone's paying attention." We'd say the opposite is true. Whatever the merits of a particular nominee, who but a partisan (i.e., someone now paying attention) would think it fair to deny him a vote? Indeed, if there's one advantage for Democrats in abolishing the filibuster now, it is that it would relieve the pressure on them from far-left interest groups to filibuster a Supreme Court nominee.

There are other reasons, however, why the Dems may want to avoid the "nuclear" confrontation now, thus preserving the filibuster for future use. With a few dissenting Republicans, it seems clear that Frist has at best a bare majority for eliminating the filibuster now. If the Democrats gain Senate seats next year--or even before the election, through the death or retirement of a Republican from a state with a Democratic governor--the filibuster may suddenly lose its "nuclear" vulnerability.

Further, some Democrats have been acting against their own political interests by obstructing Bush nominees (cf Tom Daschle). Freeing them to vote for cloture could help their re-election chances, which would be in the long-term interests of the Democrats.

All very reasonable. But I continue to believe that people are "paying attention" right now. And the costs to the Democrats of backing down now by simply allowing the votes would be huge, as noted above.