Non-Nuclear Deal Brings Disappointment

A deal has been reached on filibustering judicial nominees. The Senate has been spared the dreaded “nuclear option.” Some of President Bush’s most controversial judicial nominees will get an up or down vote on the Senate floor. But conservatives are not happy.

14 “moderate” senators, seven Republicans and seven Democrats, have banded together to implement a compromise that will prevent the Republican majority from changing the filibuster rules and prevent the Democrats from filibustering Bush’s judicial nominees except under “extraordinary circumstances,” whatever that means.

Senate Filibuster Basics
To understand what happened you have to understand how the Senate works. There are 101 possible votes: 100 senators plus the Vice President, who sits as the speaker of the chamber. There are currently 55 Republicans and 45 Democrats. Historically it has been easier for the minority party (regardless of who holds the majority) to put aside differences and maintain a united front.

A parliamentary device called the filibuster allows the minority party to prevent a vote on the floor of the Senate. The minority party can continue debate ad infinitum until at least 60 senators vote for cloture (this number has been changed throughout history by majority vote). This ends the debate and makes way for the vote to take place. The most infamous use of this device was to prevent a floor vote on civil rights legislation for decades by senators from southern states, despite the fact that the legislation clearly would have passed a floor vote.

Filibustering Judges and Stopping the Stoppers
During W’s first term Democrats used the filibuster to block votes on half of the President’s nominees to mid-level federal courts – the courts that are seedbeds for Supreme Court nominees. This unprecedented use of the filibuster blocked judges with conservative, religious, or constructionist viewpoints, regardless of their fitness to serve. Despite being in the majority, Republicans were unable to cobble together sufficient votes for cloture.

As the 2004 political campaign wrapped up, it became clear that Republicans had gained more power in the Senate. Encouraged by constituents, majority leader Bill Frist warned that if Democrats refused to allow a floor vote on all of the President’s nominees he would call for a parliamentary ruling from the speaker (a.k.a. Vice President Cheney) that would determine that filibusters were out of order in regard to judicial nominee votes. The speaker’s ruling would require 51 votes to become an official rule. This was dubbed the “nuclear option.”

Conservatives have been very unhappy with the amount of time it has taken to bring this matter to a head, but Frist had to work to make sure that he had at least 51 votes. Some liberal Republicans openly broke ranks. Minority leader Harry Reid suggested that he had enough votes to prevent the rule change. It was all scheduled to come to a vote today. That vote won’t happen because 14 senators have robbed both sides from having sufficient votes to either implement the rule change or to sustain a filibuster.

The Compromise: Winners and Losers
One of the central figures of the compromise is the media darling John McCain (R-AZ). While many are surprised by this development, we probably shouldn’t be. A lot of scuttlebutt has been going around about a compromise brokered by Trent Lott (R-MS). Several long-time experts on the Senate have speculated for weeks that a compromise would be reached when the vote became imminent – within 24 hours of the vote. However, we must understand that unless the Republicans pushed it all the way to the edge there would have been no compromise.

Who wins? Harry Reid sounded very happy indeed and admonished W to be humble, but Bill Frist sounded bitter and said that the agreement falls far short of ensuring a fair floor vote on each nominee. That pretty much says it all. Why would Reid be happy? Because the Democrats are now off the hook with their extremist supporters that had pushed them into an unworkable obstructionist position. Frist is unhappy because he knows that his constituents – the grass roots folks that care about this issue – feel shortchanged. Republicans might pay in the next election.

Dr. James Dobson of Focus on the Family represents the feelings of many conservatives. He has worked tirelessly for several years to see this matter resolved. He feels the agreement the agreement “represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats.”

The conservatives’ disappointment can be understood. When courts started creatively interpreting the Constitution in socially liberal ways, conservatives understood that they needed to get more constructionist judges appointed. To do that they needed stronger representation in Congress (particularly the Senate) and in the White House. Many have worked at the grass roots level for years to achieve this goal. Then, after getting there, the rules of the game were changed. So they worked to get even stronger representation. They thought they had a sure win this time. Now they feel like victory has been snatched away in the last seconds of the game.

What Now?
Besides, what does this compromise mean? It means that you have an even smaller group of people (14 moderates instead of 41 Democrats) holding most of the cards on judicial nominations. It means that power has shifted in the Senate. But nobody knows the strength or the durability of the coalition. We pretty much had known quantities before this. Who knows what the political landscape will look like at another time? The bird in the hand has been exchanged for two in the bush. The real gem, conservative Supreme Court nominees, can still be Borked and/or filibustered. The coalition may fall apart at any time. It may not even exist after the next election cycle. As eloquently noted by respected political analyst Michael Barone, centrist coalitions do not have a history of longevity.

John McCain is beloved by the leftist media because he regularly falls in line with their political leanings despite being a Republican. Some feel that his centrist views and contentious relationship with the Bush Administration make him a natural to win the presidency in 2008. But let’s be realistic. His actions may endear him to centrist, unaffiliated, and unknowledgeable voters, but they make him poison to the Republican machine that would have to hand him the nomination. He might be able to win a general election, but he’ll never get the chance because he can’t win the primaries.

For now we have a tenuous compromise that will allow some of President Bush’s “controversial” judicial nominees to receive a fair vote on the Senate floor. But nothing has been permanently resolved. Wait to see new fireworks when a Supreme Court Justice retires. Politics is a strange business. Part of the landscape never changes, while part of it is ever shifting. It’s sometimes hard to tell which part is which. Social conservatives are trying to play the game, but it turns out that politics is a fickle god.

Andrew McCarthy: The compromise sticks it to conservatives
Quin Hilyer: The compromise proves the Senate is a den of unprincipled back scratchers
NRO Editors: Three reasons the compromise stinks
Scrappleface (satire): Now judicial nominees need a superduper-majority
RedState.org: The deal was the best we could really have hoped for
Sen. John Cornyn (R-TX): Dems admit their position was unfair
AP: Conservatives intend to make compromisers pay