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So sayeth some of the Gang of 14:

With President Bush expected to name a successor to Justice Sandra Day O'Connor next week, liberals are laying the groundwork to challenge the nominee if he or she leans solidly to the right on affirmative action, abortion and other contentious issues. But even if they can show that the nominee has sharply held views on matters that divide many Americans, some of the 14 senators who crafted the May 23 compromise appear poised to prevent that strategy from blocking confirmation to the high court, according to numerous interviews.

The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character.

The article, entitled "Filibuster deal puts Demcrats in a bind", made me a bit uneasy.  Did the moderate Democrats state that "ideology is not an extraordinary circumstance"?

Further into the article, we see that this seems to come from the right, not the left:

Sen. Lindsey O. Graham (R-S.C.), one of the 14 signers, noted that the accord allowed the confirmation of three Bush appellate court nominees so conservative that Democrats had successfully filibustered them for years: Janice Rogers Brown, William H. Pryor Jr. and Priscilla R. Owen. Because Democrats accepted them under the deal, Graham said on the Fox program, it is clear that ideological differences will not justify a filibuster of a Supreme Court nominee.

"Based on what we've done in the past with Brown, Pryor and Owen," Graham said, "ideological attacks are not an 'extraordinary circumstance.' To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent."

The article then quotes a spokesman for Democrat Bill Nelson, who agrees that ideology is not an "extraordinary circumstance" unless it is on "the extreme of either side." So the idea that the SCOTUS is not extraordinary IS coming from the left, albiet center left.

Now, I know many of here think the very fact there is a vacany on the Court constitutes an "extraordinary circumstance."  But it is pretty clear some members of the Gang of 14 do not agree.  

And this is the concern I, along with many, many others expressed when the filibuster deal was made.  "Extraordinary circumstance" was undefined in the agreement, allowing either side to import their own definition and seek to bind the opposition to it.  In that sense, there really is no deal at all. Where there is no mutual understanding, where parties assent to an agreement with different interpretations and different views of their respective obligations, that agreement is worthless.

So be prepared for hours of debate on what constitutes an "extraordinary circumstance." Be prepared for each side to argue they aren't holding up their part of the deal. And be prepared, once again, for the launch of the nuclear option if Bush does not nominate a consensus candidate.

Originally posted to Georgia Logothetis on Mon Jul 04, 2005 at 05:54 AM PDT.

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Comment Preferences

  •  Not a gang (none)
    Don't use the Fox term, please.
    I may not agree with everything Graham does, but he correctly shot that ridiculous framing down immediately.

    Brings up images of the Gang of 4 in China, or a Gang of Bikers/Thieves/Thugs/Etc.

  •  Graham is being disingenous (4.00)
    • The agreement speeled out action on the pending nominees (Brow, Owen et al) separate from the language on extraordinary circumstances

    • Graham says, if judicial philosophy is not an extraordinary circumstance, that leaves only personal ethics or character. But there are many other conditions that could fairly be described as extraordinary: a nomination made with no consultation with the Senate, a 30-year-old nominee, a nominee with no judicial experience, a previously rejected nominee (e.g. Bork).

    I've got blisters on my fingers!

    by Elwood Dowd on Mon Jul 04, 2005 at 06:10:26 AM PDT

  •  I disagree with your interpretation. (4.00)
    I don't read what you've given us here to mean that "the SCOTUS is not extraordinary IS coming from the left, albiet center left."

    The recitation of the positions held by Graham and Nelson are not comments on whether or not any appointment to the Supreme Court constitutes "extraordinary circumstances" simply by virtue of its importance, which is what I've always taken to be Armando's meaning.

    Rather, these positions are comments on whether or not these Senators view ideology and/or judicial philosophy to be capable of producing "extraordinary circumstances." Graham says he does not, although I expect that if he were pressed, he would modify his position to mirror Nelson's, which essentially says that an extremist on either side could possibly meet his threshold. I'm sure Graham would like to have that room for maneuvering.

    However, Graham is, I believe, misinterpreting the deal. The agreement was very clearly separated into two distinct parts, one dealing with pending nominations and one dealing with future nominations. The text of the pending nominations section singled out Pryor, Owen and Brown by name, and cleared the way for their votes without any mention of the "extraordinary circumstances" standard, whatever it might turn out to mean. This is a special dispensation, and is not a yardstick for what does or does not constitute "extraordinary circumstances," a phrase not mentioned until the second part of the agreement, which outlines how all future nominations will be handled. In other words, "extraordinary circumstances" have no bearing on the nominees cleared by name in part one of the agreement.

  •  I would also add... (none)
    that, like Elwood, I can see other circumstances which might themselves be extraordinary.

    If, for instance, the president nominated Janice Rogers Brown (or any of the other recently confirmed nominees) to fill Justice O'Connor's seat, I believe that in itself would be extraordinary. Republicans would no doubt lean on Graham's misinterpretation of the terms of the deal, to claim that Brown or any of the others are by definition outside of "extraordinary circumstances" by virtue of having been confirmed under the agreement.

    That not only reads into the deal something which isn't there, as mentioned above, but it also ignores the fact that elevating a newly-minted circuit court judge who hasn't even put a dent in her cushy new seat yet would, to most observers, be extraordinary in itself. Extraordinary enough to qualify? I'd say so.

  •  but, of course, this was predictable (none)
    and in fact, no shortage of people - myself included - predicted it.

    The "deal" was a play for time.  The Dems signed on because they felt more time would show the insidious power grab politics of the right to the public and would play to the Dems' favor.  And they may yet prove right.  Rove, call your lawyer.

    This was always about saving the fight for SCOTUS.  Harry Reid knew this, and along the way, he weakened Frist.  The value of the "deal" can only be shown with time.

    In short, the "deal" represented a bet by the Dems that fighting on other ground at a later date would be advantageous.  We're about to find out if it was a bet worth making.

    We are not "compassionate conservatives." We are "fighting liberals." And we'll kick your ass.

    by Pachacutec on Mon Jul 04, 2005 at 06:24:44 AM PDT

  •  A predictable Republican line. (4.00)
    And, you've overlooked the significant difference between the remarks attributed to Lindsay Graham ("ideological attacks are not an 'extraordinary circumstance'") and to a spokesperson for Ben Nelson (ideology is not an "extraordinary circumstance" unless it is on "the extreme of either side"). The Nelson exception is large enough to serve.

    Moreover, as today's Boston Globe reports:

    - Some Democratic senators said yesterday that they were prepared to filibuster a Supreme Court nominee they find unacceptable, and urged President Bush to name a ''mainstream conservative" to replace retiring Justice Sandra Day O'Connor.

    Arlen Specter already has put down a marker -- so-called original intent -- that Democrats can use as one basis for a filibuster.

    Arlen Specter . . . suggested he would be concerned about a nominee who believed categorically in "original intent" . . .  "If you followed original intent," Specter said, "the galleries in the United States Senate would still be segregated, with Caucasians on one side and African-Americans on the other side."

    (Doing his best to fracture the Republicans, Robert Bork Bork "disputed Specter's characterization of his views on race. 'I know Specter, and the truth is not in him,' Bork said on CNN's Late Edition.")

    f/k/a one of the people "`Our country, right or wrong!' . . . when right to be kept right; when wrong to be put right.'" (Sen. Carl Schurz)

    by another American on Mon Jul 04, 2005 at 06:48:46 AM PDT

  •  For the 7 Republicans ... (none)
    ... 'extraordinary circumstances' would be if polls showed their constituents sided with the Democrats.  If they are threatened with not being re-elected, they'll side with Dems against an extreme right nominee.  So it's important to mobilize in their states and put the pressure on.

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