Liberals Rethinking Senate Filibuster Deal

Not surprisingly, some Democrats are unhappy that the result of the filibuster deal worked out a couple weeks ago will be the confirmation of several judges they have long opposed. This, they say, was too high a price. Indeed, they are coming to believe that they may not have accomplished anything, since there is no guarantee that Bush will not continue to push the same slate of judges he would have before the deal in any event. Given that Bush's most obvious character trait is an absolute refusal to ever depart from a particular course once he has set out on it, I must say that the Democrats were silly to think the filibuster deal would make Bush more moderate on this point.

James Taranto has a lot of fun with the Democrats' discomfiture in this regard. Here's a sample:

The first stage of the compromise--the end of the filibusters of Priscilla Owen, Brown and William Pryor--is a political disaster for the Democrats. Not only are the three judges they condemned as "extremist" almost certain to be confirmed (Owen already has been), but the smear campaigns against them are being exposed as ridiculous.

But, I think his gloating is as overblown and premature as is the Democratic hand-wringing.

Democratic angst over the filibuster deal would be justified only if there were some reason to believe that the Democrats could have stopped any of these judges from being confirmed had they "hung tough". They could not have. In the face of an obdurate refusal of Bush to compromise and of moderate Republicans to oppose any of Bush's nominations, a 55 to 45 Republican majority is simply too big for the Democrats to overcome. If they had decided to go to the mat on the issue, all they would have succeeded in doing is losing the right to filibuster at all. This, in fact, would have made things a lot worse from their perspective. In the end, having a sizable majority matters. Given this situation they are in, the most the Democrats could have hoped for was to live to fight another day. This is what the filibuster deal gave them. And it is silly to suggest that that is worthless.

On the other hand, James Taranto's glee is probably unwarranted as well. What Bush has won so far is only this: He has gotten five or so additional Court of Appeals judges appointed. Frankly, even if these five people were as "extreme" or as "out of the mainstream" (whatever THAT means) as the Democrats claim them to be, having five more such judges spread among the 11 Courts of Appeals is simply not going have all that much of an effect. Taranto, in short, greatly overstates the significance of these appointments. The battle that is potentially significant is the one over the next Supreme Court nominee. And, no one doubts that given the significance of such an appointment it would be exactly the sort of "extraordinary circumstances" that would leave the Democrats free to filibuster. In short, all the Republicans have won so far is an initial and not very significant skirmish. The important battle is yet to come.

The really interesting question, then, is what impact the filibuster deal will have on a Bush Supreme Court nomination, assuming there is one. Initially, atleast, such a nomination is likely to put the Senate back where it was before the filibuster deal, with the Democrats vowing to filibuster and Frist vowing to end filibusters altogether. One could hope for a different outcome, of course -- some sort of compromise -- but Bush seems irreversibly in the thrall of the Christian Right and the Democrats are so pathologically ant-Bush that they would probably oppose Earl Warren if Bush nominated him. So a fight seems inevitable. The outcome of that fight will depend on how the Republican "gang of 7" responds.

The expectation, of course, is that, when push comes to shove, party discipline will prevail and the 7 will fall in line. If so, the Democrats will lose, and the only question will be whether they lose only the confirmation or both the confirmation and the filibuster. But, I'm not sure that's what will actually happen. A lot depends, of course, on how outrageous the nominee is. If the Dems are opposing someone solely because Bush nominated him/her, they will lose. But, if Bush actually proposes someone that is a right wing idealogue, my guess is that the Republican gang of 7 is going to be in a tough, tough spot.

This then is the principal benefit of the filibuster deal for the Democrats: it creates risk for Bush. And the existance of risk tempers action. That is about the best the Democrats can do right now.

PS: I think the importance of this whole issue is vastly overblown. As I pointed out in an earlier post, there is something about becoming a Supreme Court Justice that changes people. They become very concious of their place in history and the awesome power they wield. That, coupled with the freedom from political pressure provided by a lifetime appointment makes even very apparently doctrinaire nominees considerably more introspective about what positions they take. Witness Justice Kennedy.