Last night's agreement averting the nuclear option is, if you consider it carefully, nothing less than an announcment of
an alliance of convenience between the Democratic minority and the Republican swing bloc that signed the agreement. It confirms, in no uncertain terms, that
Bill Frist has lost control of the Senate for the remainder of the 109th Congress. The more I reflect about this, the more extraordinary a circumstance it seems to me: and since it's going to take me a few paragraphs to develop the thought, I want to highlight it here (I have a way of burying my leads when I'm writing in essay form).
The logic of the agreement, and the goals of the players in it, absolutely require that the swing Republicans respect (and even enable) the Democratic filibuster. Read on, please.
[Crossposted from Reading A1.]MoveOn's message to the troops this morning, in re the nuclear test-ban treaty is that we've won:
With 7 Republicans pledging to oppose Frist's scheme as long as the Democrats stick to the standard for filibusters they've used all along -- only using them in extraordinary circumstances -- the "nuclear option" is dead unless Republicans break their word. And if that happens we will be in a much stronger position to stop them. ...
Had Senator Frist succeeded in executing the "nuclear option" we wouldn't just be facing three terrible judges on the US Courts of Appeals -- we'd be watching one party take absolute control of all branches of government for the first time ever. And radical Republicans would have had complete power to stack the Supreme Court with unchecked extremists and to roll back decades of progress on all our most cherished rights.
Of course, the Republicans could still decide to go back on their word and break the agreement at some point in the future. But even if that happens they have already failed in their primary goal: to eliminate the filibuster now, before there's a vacancy on the Supreme Court -- before Americans are watching and it's clear how much is at stake.
Averse as I am to taking anybody's marching orders, and lacking in nuance as this is, I have to say that it's a decently persuasive analysis of the larger state of play, particularly that last point, about the timing of the filibuster fight wrt a Supreme Court vacancy. I've found myself getting less inclined to eat fire about this as time goes on—much less than I was at first blush last night. In particular, I recommend Chris Andersen's post analyzing the text of the Gang of 14 agreement on dKos, which gets it mostly right, I think, in its analysis of winners and losers.
Yet in Chris's post, as in most other commentary, I think the "winners and losers" balance gets somewhat skewed, by its being calculated entirely, or almost entirely, with respect to the outcomes for the Senate leadership and for the national parties. In my reading, the crux of the agreement comes in its last few paragraphs, particularly considered in light of the commitment made by the memorandum's signatories not to support the "nuclear option" for the duration of the 109th Congress:
We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.
Chris Anderson suggests that, as this language explicitly rejects the winger contention (orchestrated, of course, by the Bush White House) that the Executive owes no deference to Senate sentiment in the nomination process, it represents an endorsement of "the Democratic position that the Senate holds a co-equal responsibility with the Executive branch" in the judicial nomination process. (Corrente's Lambert sees it, a bit more succinctly, as "a slap at Bush for acting unilaterally" in making his nominations.) "They have sided with the balance-of-powers argument," Chris optimistically continues, "and, in the process, re-established the power of both the judicial and legislative branches."
And while I sympathize with the desire to draw broad conclusions here, there's no way that this language does the job of "re-establishing" anything to do with the balance of power between the constitutional branches. In hard political terms, a commenter on Andersen's post comes nearer to the truth with the suggestion that the memo gives notice "that the President, in consultation with a bipartisan commission from the Senate, ought to be presenting nominees where the question of a filibuster is moot"—that he "ought to be consistently presenting judicial nominees that are amenable to—at a minimum—60 Senators." Actually, the number of Senators who Bush is now forced to consider in the matter of judicial nominations is considerably smaller—seven, to be exact—and not at all a "bipartisan" group. (The Joementum Democrats who signed the memo, whatever delusions they may harbor about their position, are nothing but a group of rather wilted-looking fig leaves: they've been played by both sides here.)
In hard political terms, the big winners in the Gang of 14 agreement are the Republican signatories—the anti-theocrat mavericks, who have now established that they hold the balance of power in the Senate, at least on this matter and probably, potentially, on others. (Can we please agree not to call them "moderates"? Lindsay Graham is a centrist by no possible reasonable definition of the term: he's a hard-right conservative, the only difference between him and his ideological brothers being that he seems to have retained some measure of civic conscience. Which is a large enough difference, I guess, in these degraded times.) Karl Rove's going to have to suck it up and deal with them now, much (I expect) to his chagrin. (Unca Karl's not exactly known for his patience with legislators who won't toe the line.) It's strange to see the memorandum spun as a "compromise"—what kind of compromise is it where one of the two warring parties is unrepresented in the negotiations, or in the end product? Frist's enlistment with the theocratic extremists has, in effect, created a power vacuum in the Senate—a small enough vacuum, but one that the Republican mavericks have deftly stepped into, with the Cheshire-cat assistance of Harry Reid. John McCain may have no remote chance at the 2003 presidential nomination, but he's neatly slipped a shiv in Bill Frist's back; and Lindsay Graham his positioned himself as perhaps the crucial Senate power broker through 2006.
And, most important by far: the GOP mavericks have served notice that the road to the next Supreme Court appointment, assuming a vacancy occurs as it almost certainly will in the 109th Congress, runs directly through them. They have essentially announced that if the Democratic side feels a filibuster is required then, there will be no room for anyone on the Republican side to invoke the nuclear option—they've committed to its failure, and they have the votes to see to it. Don't trust that commitment? Well, follow the logic: the mavericks need the threat of a Democratic filibuster to be alive and well, or there will be no incentive whatever for Bush/Rove to deal with them. These guys are determined to get what they regard as an acceptable (i.e., non-theocratic) Supreme Court nominee, and this temporary league with the Democratic opposition is their ace in the hole. I'm a bit surprised nobody has so far teased out this obvious corollary, so I'll say it again: the threat of Democratic filibuster is the power of the Republican mavericks, and the Gang of 14 agreement has formalized that fact. (There won't actually have to be a Supreme Court filibuster now, of course; last night's demarche means that everybody knows the score and knows that the mavericks hold the whip hand here.) McCain and Graham et al. need Harry Reid every bit as much as he needs them.
It's clear that Reid decided a month or more ago that what emerged as last night's agreement would be his preferred outcome: one that would fatally weaken the majority leader while giving him a degree of leverage over a key Republican swing group, and at the same time avert a really disastrous Supreme Court pick. Of course, the price we pay for Harry gaining this room to maneuver is steep: three (even only two will be bad enough) of the most retrograde and corrupt judges ever nominated to the Federal bench will now receive their lifetime appointments—which they will regard as a free pass to smash anything they feel like smashing.
On balance, I was looking forward to Frist having to fully explore the space between that rock and the hard place that he'd wedged himself into. (If Billy F. had a brain, he'd be singing hosannas at the cup having passed, at least for now.) I had come to regard the filibuster fight as a teaching opportunity: following hard on the heels of the Schiavo debacle, an occasion for the left to further instruct the buyer's-remorse segment of the public about the full ugliness of what they'd bought when they voted Republican last year. But the floor of the U.S. Senate, especially with a Supreme Court vacancy looming, is probably no place for guerilla warfare and the sharpening of contradictions. There'll be (dismayingly) plenty of opportunities for such stuff in the months and years to come. Under the circumstances, I'm coming round to feeling that Harry's given us the best we could reasonably hope to have gotten on this one.