Filibuster compromise bites us back

Filibuster Deal Puts Democrats In a Bind

Pact May Hinder Efforts to Block High Court Nominee

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/03/AR2005070301146.html

I have excerpted a lot of article because I think we need to see the MSM viewpoint here being formed. It is written by Susan Schmidt, a Clinton persecutor, so there should be some scepticism.  It also presents the Republican view of the accord, not the Democratic view and of course only quotes the biggest Democratic appeaser, Ben Nelson.

But I thought at the time that the compromise was a bad deal for us, especially because it let Brown go by as not extraordinary.

.

I think if Frist had brought it to a vote he would have lost, but even if he hadn't the Dems going into guerrilla mode would have shown we had an agenda and we had courage.

Moderate Dems could have 3 Aces and 2 Kings and the Repubicans bluff and they fold.

Democrats' hopes of blocking a staunchly conservative Supreme Court nominee on ideological grounds could be seriously undermined by the six-week-old bipartisan deal on judicial nominees, key senators said yesterday.

 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.

...Among the bipartisan "Gang of 14" are, from left, Sens. Mark Pryor, Mike DeWine, Susan Collins, Olympia J. Snowe, Mary Landrieu and Robert C. Byrd. (By Melina Mara -- The Washington Post)

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 distinction is crucial because Democrats want to force Bush to pick a centrist, not a staunch conservative .....

GOP leaders, sensing the Democrats' bind, expressed confidence ......

.....The seven are implicitly released from the deal if the Democratic signers renege on their end. Yesterday, key players suggested the seven Democrats will automatically be in default if they contend a nominee's ideological views constitute "extraordinary circumstances" that would justify a filibuster.

....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."

Sen. Ben Nelson (Neb.), a leader of the seven Democratic signers, largely concurred. Nelson "would agree that ideology is not an 'extraordinary circumstance' unless you get to the extreme of either side," his spokesman, David DiMartino, said in an interview.

The debate goes to the heart of Democratic leaders' strategy .......... For example, if Bush were to nominate Brown -- the outspoken California judge recently named to the U.S. Court of Appeals for the D.C. Circuit -- "I could assure you that would be a very, very, very difficult fight, and she probably would be filibustered," Sen. Joseph R. Biden Jr.

.....But Graham flatly rejected that view. With help from only one or two fellow Gang of 14 members, he is positioned to dissolve the deal and thwart Biden's scenario -- either by having enough Democratic signers refuse to back a filibuster, or by having enough GOP members support Frist in outlawing judicial filibusters.

Graham predicted that Bush will nominate "a solid conservative" to replace O'Connor. Noting that the conservative Thomas replaced the liberal Thurgood Marshall, Graham said: "This idea of an ideological balance being maintained by a particular president has never been the standard."

Throughout the weekend, liberal and conservative activists sparred over an issue that has dogged judicial confirmation battles for years: How hard should nominees be pressed to say where they stand on contentious issues that could come before the court?

..... "The Supreme Court is a lifetime appointment that has enormous power, and I think the number one thing that I am interested in are the nominee's views," Schumer said on ABC's "This Week," where he appeared with fellow Judiciary Committee member Cornyn.

Asked if a senator might press nominees on whether the 1973 abortion rights ruling in Roe v. Wade "is settled law," Cornyn replied: "I think it's an appropriate question to ask what their views are on cases that have been decided and judicial opinions that have been written. But to ask them how they would decide, not knowing what the posture of the case would be if it were presented, I think is inappropriate, and it's asking them to prejudge the case." Schumer appeared surprised by the Roe comment, saying, "Maybe there's less disagreement than it appears."

Judiciary Committee Chairman Arlen Specter (R-Pa......' But I would ask a nominee . . . 'When you have a decision which has been in effect for decades, and people have come to rely upon it, what kind of circumstances, how extraordinary must they be' " to try to overturn it?

......"that there will be no filibusters except under extraordinary circumstances. And we know that judges like Janice Rogers Brown and Bill Pryor and Priscilla Owen are not an extraordinary circumstance."

Some conservatives would like to see Brown -- who is virulently opposed by many liberals -- elevated to the Supreme Court, arguing that the Senate would be hard pressed to reject her only months after confirming her to the appellate court. But Democrats said the Supreme Court stands alone in importance, and a senator's vote for an appellate court nomination plays no role in a Supreme Court choice. "Totally different ballgame," Biden told CBS.

•  There should be and is a difference between

  what "extroadinary" means on the appeals level and what "extroadinary" means on the supreme court level.  If you take Armando's view, a supreme court nomination is in it's very nature "extroadinary."

  by FleetAdmiralJ on Sun Jul 03, 2005 at 10:09:43 PM PDT

  •  I agree

    But the Republicans don't.

    Let's hope that for once the 7 moderate Dems have some guts and agree with the three of us and not Lindsay graham.

    by debcoop on Sun Jul 03, 2005 at 10:17:13 PM PDT

    •  The deal gave us political cover

      If we win the nuclear option vote, then one could argue that we needlessly confirmed the three appeals court judges, but we lose nothing on the supreme court.

      If we lose the nuclear option vote now, we would have lost it then, and everyone get confirmed anyway, deal or no deal.

      What the deal does is that in the second case, we have something that we can beat over their heads if they do infact pull the trigger and win.

      by FleetAdmiralJ on Sun Jul 03, 2005 at 10:21:00 PM PDT

    •  Repugs

      may not agree...but the everyday people I've spoken to so far this weekend seem to think it is pretty special just because it doesn't happen so often. We may have a bit of room to wiggle here...not much, but a little. I just hope we (Reid et al) can explain it clearly and concisely in the MSM.

      by Elise on Sun Jul 03, 2005 at 10:22:43 PM PDT

      •  I think so, too

        The GOP is starting from a disadvantage on this: people want moderation, and thus far, all they've seen from the GOP is nuttiness.

        Look, the GOP is trying very hard to get an upper hand in this.  That's what these pre-emptive claims about putting wingnut loons on the bench not being "extraordinary" are all about.  But we don't have to let them.

        This was one of the main reasons I cheered the filibuster deal in the first place: it saved any "nuclear option" decision to a time when maximum attention and maximum resources were focused on the action.  It made sure that the GOP's radicalism would receive the most play and stick in people's minds.

        by Jonathan on Sun Jul 03, 2005 at 10:57:08 PM PDT

    •  spin...

      Frist wants to trigger the nuclear option...he's itching to do it. So he's going to spin it for all it's worth. And he's going to make sure that Graham spins it that way too...for as long as he can control Lindsay, which may not be too long.

      Keep the powder dry for the moment...and breathe.

      by kredwyn on Sun Jul 03, 2005 at 11:11:31 PM PDT

  •  Dems need to stay united

    just like social Security.

    Not just because we need every vote, but because if the 45 Senators all have the same message that is what the MSM will have to report rather than picking off one or two  or three to represent moderation.

    I worry  about Senatorial narcissism and the need to have Tim Russert love them.

    But we have to stay united.

    I have always thought just focusing on the most exrtreme nominees and trying to block them was an error.  I thought we should have held up lots more and tried to show that Bush was trying to hijack the entire court system to perpetuate their power.

    by debcoop on Sun Jul 03, 2005 at 10:21:36 PM PDT

•  The Left Coaster changes his mind

  I will quote.  He thinks we need to go to the mat and I think we need to go to the mattresses. (finally a Godfather quote I can use.

  Sunday :: Jul 3, 2005
  As Expected, GOP Tries To Rewrite The Nuclear Option Agreement

  Those of you who argued that the nuclear option deal was a mistake may be proven right after all. I had argued originally that Harry Reid made a good choice to let seven of his caucus cut a deal with seven GOP senators in order to preserve the filibuster option for a Supreme Court nomination, ........... but I did feel that the filibuster needed to be retained for Supreme Court picks. With O'Connor's vacancy and the possibility (I say possibility not probability) of Bush picking a court-changing far right conservative to replace her and affect the balance of the court, the filibuster is as important as ever.

  Today, the GOP gave clear indications that they will interpret any filibuster attempt by Democrats against a far-right pick to be a violation of the nuclear option deal.............

  But unfortunately Ben Nelson of Nebraska, one of the Democratic signatories, implied that he agreed with the GOP interpretation, and gave the impression that he would not support an ideologically-based filibuster, unless the nominee is far to the right.......

  But I don't think a president with a 42% approval rating and a 42% support-for-impeachment rating is in any position to dictate squat here. And the Democrats should be ready to force the GOP to the wall on this, even if the nuclear option deal and th
  t and the mattresses.  After all Bush is pretty low in the polls, though this should rally his base._

  by debcoop on Sun Jul 03, 2005 at 10:30:57 PM PDT

  •  They're missing the point

    if republicans believed that you couldn't filibuster based on ideology now, they believed that then, which means that they would do the exact same thing whether we had a deal or not.

    Again, people think the deal was about saving the filibuster.  Not really.  The deal doesn't prevent them from approving the nuclear option than before.  Anyone who thought otherwise was supporting the agreement for the wrong reasons.

    What this does is wave an agreement in their faces, hopefully (and dare I say probably) with public opinion on our side saying that if they do it, we're going to paint them as people who can't even keep their own promises in the Senate.  Hopefully as a result, they'll rather either not implement the nuclear option, or vote against it than face both a shutdown of the Senate on top of having a clear cut case of untrustworthyness to deal with.

    by FleetAdmiralJ on Sun Jul 03, 2005 at 10:36:41 PM PDT

    •  Are you accusing the Rethugs of integrity?

      They're missing the point (none / 0)

      if republicans believed that you couldn't filibuster based on ideology now, they believed that then

      Well I am not accusing them of integrity, just the usual power plays and twist everything to their benefit.  Not remembering what they thought then is in character for that party.  Or they could have let the Dems think so, even if they didn't.

      My critique then and now was that the compromise was a bad deal which tied Dems up in knots more than Rethugs.

      Even Soto says they "twisted" the words and the logic.

      But I think we do need to paint them into a corner as being the ones who nominate in bad faith for an extremist agenda and that the 7 Rethugs are going to break the deal for a nuclear option in bad faith to support an extremist agenda.  

      When the 7 Dems compromised they were lauded by the press for their moderation. We need to get the MSM to say the Repub's are breaking the deal not us.  At least, so far,  in the Post article they have characterized our side, not the other way round.
      

      by debcoop on Sun Jul 03, 2005 at 10:47:19 PM PDT

  •  Also, I'd like to know exactly what Nelson said

    because I would tend to agree...in most circumstances, ideology shouldn't be used to filibuster, except for extremists.  The argument would seem to be what defines an extremist.

    by FleetAdmiralJ on Sun Jul 03, 2005 at 10:38:37 PM PDT

    •  As you can see from earlier comment

      I thought we should have blocked many more because there were more exttremist on ideological grounds than 10.

      I think they are trying to control the courts.

      Bush did it right, nominate the most conservative.  Even at the time I thought Clinton was not aggressive enough in putting forward noiminees at all levels, but particulrly SCOTUS

      Amnd I have always disagreed about ideology.  I always thought it had great relevance.  Because those kind of judges look bfor arguments to support predetermined results rahter than following legal reasoning to conclusions they may personally abhor.

      by debcoop on Sun Jul 03, 2005 at 10:51:01 PM PDT

    •  Ideology vs. lack of judicial temperament

      Whether opposition is "ideological" and thus outside of the filibuster compromise is spinnable.

      Consider abortion as a litmus test for both sides.  If a nominee is opposed to abortion, that's ideological opposition.  If a nominee says Roe or Casey should be overturned then that is a lack of judicial temperament because of lack of respect for stare decisis.

      by Old Left Good Left on Mon Jul 04, 2005 at 12:16:07 AM PDT

•  john dean

  wrote a great piece about "judicial activism" over at find law.

  Judicial activism" has become an appellation of choice in the current debate about the role of judges and justices in American government. Most prominently, right now, it's used by Democrats to attack the President's judicial nominees, and by Republicans to attack judges who reach results of which they do not approve.  But exactly what does "judicial activism" mean? In this column, I'll explore that thorny question."
  
  ...Such charges, then, add absolutely nothing to the debate because it is anything but clear what the Senators -- as well as all others using the term -- mean. And such conflicting, typically inexplicit usage of this moniker is rampant.
  
  Given the importance of this debate, however, it seems appropriate to cut through the rhetoric and politics to look at the reality behind the term.

  a must read!  found this at crooks and liars

  by Cedwyn on Mon Jul 04, 2005 at 12:23:30 AM PDT

•  I seems pretty clear

  that had there been no deal, the Repubs would have invoked the nuclear option with big fat disgusting Dick Cheney being the 51st vote.  So, ineffect, the deal merely served to put off the nuclear option.  Now, even if a few of the Repubs decide the deal is off, perhaps. . . just perhaps, there will be a few others to take their place -- especially if the nominee is really shown to be a rigid ideological extremist.  It's one thing to stand with your party's President on this matter when he has a 51-52% approval rating; it's a little bit harder to do so when he has a 42-43% approval rating.  Further, I think that invoking the nuclear option over an ideological extremist Supreme Court nominee may have far more negative political implications than doing so over lower court nominees.

  In sum, I think it may be a tad premature to worry that "the deal" will bite us in the back.

  by livosh1 on Mon Jul 04, 2005 at 06:33:15 AM PDT