Tuesday, May 24, 2005

Senate Compromise - Overview

I have had overnight to consider the Senate compromise and its likely effects. Overall, the compromise seems to give the Democrats most of what they consider essential and the Republicans have only a hope of coming out even.

The Democrats preserve their right under Senate rules to filibuster President Bush's judicial nominees, at least through 2006. The 2 sides split the baby with respect to pending nominees. As to future nominees, the Republicans gain up-or-down votes without a filibuster, except in "extraordinary circumstances" as defined by each member using "his or her own discretion and judgment".

The "extraordinary circumstances" loophole is bigger than it appears at first glance. Is a Supreme Court nomination an extraordinary circumstance? Is there an extraordinary circumstance if President Bush nominates Miguel Estrada again? In the final analysis, only each Democrat signatory will know what "extraordinary circumstances" when the nominations come to the floor of the Senate in the context of whatever the political environment may then be.

Thus, the ultimate outcome of the compromise hinges entirely on whether the Democrat signatories will find "extraordinary circumstances" regarding a future nominee. I suspect that the group of 14 senators has discussed at some length the meaning of "extraordinary circumstances". They may have a list of potential Supreme Court nominees whose nomination would not constitute "extraordinary circumstances". If the Democrat signatories do not find "extraordinary circumstances" exist for future nominees, the Republican signatories will have achieved a nearly even deal, but hope is all they have for now.

Did the Republicans gain anything they could not have if they voted to end judicial filibusters? The answer depends on what the outcome of such a vote would be. If the vote would have eliminated the filibuster weapon, the answer is that the Republican senators gained only not having to make a hard vote and not subjecting the Senate to even greater Democrat obstruction in the Senate. Frankly, neither of these is worth much. If the vote to eliminate the filibuster would have failed, then the Republicans do gain a lot, especially up-or-down votes without filibusters.

Overall, the Democrats, even the nonsignatories, are happy with the compromise because they achieve their most important objective, preserving the filibuster of judicial nominees. The Republicans must realize that, at best, they achieve a mixed result with no guarantee that they will achieve their most important objective, obtaining up-or-down votes on nominees without filibusters.

UPDATE: Although not yet confirmed, Bench Memos, the New York Times, and ConfirmThem report that, by an unwritten part of the compromise agreement, 2 nominees not named in the deal, Brett M. Kavanaugh and William J. Haynes, will not be confirmed, by action either at the committee level or on the floor. If true, this means the Republican signatories dumped 4 of 7 current nominees who would probably be confirmed by a majority vote of the full Senate.

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