by Rod D. Martin
May 24, 2005
It is important to note: John McCain’s “deal” to avert the showdown over judicial filibusters isn’t as bad as it looks. But that doesn’t make the deal good.
The seven dissident Republicans who last night short-circuited all of Bill Frist’s brave, painstaking work — the ever-grandstanding Presidential aspirant McCain in the lead, usual leftist suspects Lincoln Chafee, Olympia Snowe and Susan Collins, occasional traitor John Warner, and good guys who ought to know better Lindsey Graham and Mike DeWine — made clear they would vote with their party for the “nuclear option” if the Democrats abuse the deal. That means Democrats had best be on good behavior: Graham and DeWine will likely keep their word, maybe some of the others too; and Frist needs only two of the seven (in addition to the 48 already faithful) to win.
So if all goes to plan, conservatives get virtually everything they want, Democrats save face, and the Senate can (in Graham’s words) get back to business.
Under the deal, six of the President’s judicial nominees will get their Constitutionally-required up-or-down vote, including the three most opposed: Priscilla Owen, Janice Rogers Brown and William Pryor. Two others — Henry Saad and William Myers — were left out; but Judiciary staffers seemed convinced Tuesday morning that a private understanding on Myers would get him his vote too; and that Harry Reid’s (likely criminal) attacks on Saad had rendered him unconfirmable regardless.
But the key to the whole thing is the Democrats’ promise not to employ the judicial filibuster against any future Appellate or Supreme Court nominees, except in “extraordinary circumstances”. And therein lies the rub.
What exactly are “extraordinary circumstances”? The deal does not define them, but Democratic leader Harry Reid certainly has, making clear in speech after speech that “extraordinary circumstances” mean “anyone Bill Clinton wouldn’t have appointed,” or at the very least “anyone who doesn’t thank the goddess every night for Roe v. Wade.”
This is a far cry from forcing the Senate to act constitutionally, something which, once again, 48 Republicans led by a courageous Bill Frist (and cheered on by a President with far more to lose) were intent on making happen.
Why courageous? Because, the result of a victorious showdown on judges may or may not have been the Democrats’ threat to shut down every Senate committee, but it certainly would have been ugly. Social Security reform, tax reform, missile defense, you name it: a vengeful minority might well have blocked every jot and tittle of the President’s agenda for the next year and a half.
Despite this, Bush, Frist and nearly every Republican senator was willing to go to the mat. Judicial nominations are not a game, not a frivolity, and certainly not the appropriate subject for either filibusters or “deals”. The Constitution, while giving the Senate the right to make its own rules of procedure (hence the filibuster), requires it to give an up-or-down vote on the President’s choices for the bench.
That principle alone is worth fighting for, and traditionally has just been assumed. In the entire 214 year history of the Senate, only Democrats — and more precisely, only the current gang of Democrats, just since 2003 — have ever abused the filibuster this way. Indeed, the only other judicial filibuster on record is 1968’s bipartisan effort against the scandal-ridden Abe Fortas. The precedent Harry Reid has been trying to set is not the “preservation of tradition” he claims, but rather a naked power grab, seeking to transfer the right to appoint judges from the Executive Branch to a radical minority in just one house of Congress.
Even the appearance of assent to Reid’s usurpation is dangerous, all the more so since Reid’s aim is to stop Bush’s replacement of leftist judges with strict constitutionalists. That George Bush was willing to sacrifice his own agenda to begin fixing modern America’s judicial nightmare — and that virtually his whole party was with him, despite the political cost — speaks volumes about the vastly improved nature of today’s GOP.
The deal may work in spite of itself. Again, if Democrats abuse it, Frist is ready to act at a moment’s notice, and appears to have the votes to make that stick, despite having been thwarted Monday.
But James Dobson wasn’t wrong when he called the deal a betrayal: not a betrayal by the Republicans but a betrayal of the Republicans, a betrayal by John McCain. Many Republican candidates will likely pay an ironic and unfair price in 2006 for McCain’s self-promotion, as the conservative grassroots indiscriminately punish a party which was almost completely united behind doing the right thing.
Yet in the end, the man most betrayed is not Bill Frist or George Bush but rather McCain himself. That John McCain can’t be trusted isn’t news. But yesterday’s reminder is just the thing most Republicans needed to ensure their implacable opposition to a McCain presidency.
Come to think of it, the deal might not be so bad after all.