In a major defeat to Majority Leader Bill Frist,
a bipartisan group of 14 senators struck a deal last night to defuse the nuclear option. All members of the group rejected Frist's core argument that the judicial filibuster is unconstitutional. Instead, the compromise acknowledges the right of senators to filibuster judicial nominees, at least in "extraordinary circumstances." The senators agreed at least two of Bush's nominees – William G. Myers III of Idaho and Henry Saad of Michigan – meet that standard and should be withdrawn or subject to filibuster. According to the New York Times, two other nominees – Brett M. Kavanaugh and William J. Haynes – are not explicitly named but will be blocked as part of an unwritten side agreement among the senators. (Read Center for American Progress CEO John Podesta's statement on last night's deal.)
DOBSON AND BAUER DECLARE DEFEAT:
James Dobson – who helped lead the charge for the nuclear option as chairman of Focus on the Family – declared the compromise a crushing defeat. Dobson described the agreement as " a complete bailout and betrayal by a cabal of Republicans." He said he shared "the disappointment, outrage and sense of abandonment felt by millions of conservative Americans." Gary Bauer, president of the right-wing American Values, said the senators "who lent their names to this travesty have undercut their President as well as millions of their most loyal voters. Shame on them all."
THE BAD NEWS – THREE RADICAL JUDGES:
Nevertheless, the deal is a very tough pill to swallow for progressives. It all but assures that three radical nominees – Janice Rogers Brown, William Pryor and Priscilla R. Owen – will be confirmed to lifetime appointments on the federal bench. Make no mistake about it: should these judges be confirmed it would be a significant step backwards for civil society and the rule of law. If this bipartisan group is committed to moderation and comity, all members should oppose these nominees.
THE GOOD NEWS – NO NUKE OPTION IN THE 109TH CONGRESS:
Speaking at the press conference yesterday, Sen. Mike DeWine (R-OH) argued that the agreement allowed him to change his mind at any time if he didn't like how the filibuster was being used. DeWine said, "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." That's not what the agreement says. Section IIB provides: "In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress." Section IIA makes clear that senators maintain their commitment to the agreement as long as they only filibuster in "extraordinary circumstances," a determination to be based on their "own discretion and judgment." So DeWine can't go nuclear simply because he decides the filibuster is being used in something other than "extraordinary circumstances." Rather, based on the language of the agreement, the deal would only dissolve if senators filibuster without making a good faith determination – based on their "own discretion and judgment," not DeWine's discretion and judgment – that there were extraordinary circumstances. (For more on the nuclear option, read " Back From The Brink," the latest column from the Center's John Podesta and Mark Agrast.)
THE CASE AGAINST NUCLEAR FLIP-FLOPS:
There is another problem with DeWine or other signatories to the agreement changing their minds later and voting for the nuclear option. Voting for the nuclear option is based on a determination that judicial filibusters are unconstitutional in every instance. If those who sign this agreement then change their minds about the nuclear option because they are unhappy with how the judicial filibuster is being used, it shows they view the Constitution as a political weapon, not a legal document.
THE GOOD NEWS – A CALL FOR CONSULTATION:
A key part of the compromise calls for the president to consult with members of both parties prior to submitting nominations to federal courts. This simple step – which is consistent with the requirement that the Senate not just consent but "advise" on judicial nominees – could significantly reduce the partisanship and acrimony that plagues the process. Sen. Robert Byrd (D-WV) called for such a step during an April 25 speech at the Center for American Progress.
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