Tuesday's filibuster of D.C. Circuit Court nominee Caitlin Halligan was met in the media with the declaration that the 2005 "Gang of 14" agreement was officially dead. That was the deal worked out to settle the "nuclear option" crisis looming over the standoff over the filibuster of judicial appointments made by then-president George W. Bush.
One problem with spending much more time obsessing over whether the agreement is finally dead is it was arguably already dead, and had been since the early days of 2007. That's because the text of their agreement stated explicitly that it "related to pending and future judicial nominations in the 109th Congress." And the 109th Congress ended on Jan. 3, 2007.
That, however, has not stopped senators, commentators, journalists and others from suggesting that the principles stated in the agreement were (or ought to be) ongoing. And that's at least arguable. The oft-cited "extraordinary circumstances" test was certainly something, vague as it was, that could have endured beyond the life of the agreement. But it was that very vagueness that doomed the agreement right from the beginning, since it gave latitude to each member of the Gang to "use his or her own discretion and judgment in determining whether such circumstances exist." Senators are the princes of their own little fiefdoms, of course, and so that's the kind of latitude they have to afford one another. But for a chamber full of lawyers, they sure are unimaginative when it comes to anticipating breaches.
Despite this obvious flaw, the parties felt secure at the time, because the agreement also had an enforcement clause:
In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.
Again, you'll note that the agreement references the 109th Congress as the operative period. But if the "extraordinary circumstances" standard can have an afterlife, then so can the enforcement mechanism. And if you aren't able to suss it out of the language, what it meant was that so long as there were no judicial filibusters under circumstances other than "extraordinary" ones, there would also be no rules changes that would do away with the ability to filibuster. In other words, there would be no "nuclear option."
Well, the first part of the agreement has been declared dead. Of course, Republican senators are insisting that the Halligan nomination does present a case of "extraordinary circumstances," and is therefore automatically exempt from the terms of the agreement. That tells you something about the uselessness of the standard, if you weren't able to see it before. What makes some set of circumstances "extraordinary"? A senator declares it to be so, in "his or her own discretion and judgment." That's all it takes. But if other parties to the deal disagree? Well, they're free to retaliate by dropping their opposition to rules changes that would circumvent the filibuster's barrier.
Does anybody think they'll do that? Did you ever think so? Because if not, then the principles of the Gang of 14 agreement were dead well before this "extraordinary circumstances" question ever arose.
Of course, one of the reasons that the agreement had to limit itself to the 109th Congress is that the senators who signed it were agreeing among themselves, not speaking for the body. They weren't imposing any formal rules, they were just agreeing between themselves how they would vote on certain questions. Once any of the individual members were gone from the Senate (as five of them are now) or the partisan composition of the Senate changed in any significant way, the agreement was pretty much useless, since the numbers of signatories was calculated to leave each party just shy of the number of votes needed to effect either the threat of a filibuster or the nuclear option. The 7+7 configuration didn't mean anything anymore, after the end of the 109th Congress.
So if the "extraordinary circumstances" test is dead—or Democrats think it is—then what about enforcing the breach with the nuclear option?
Well, if you believe in agreements like this, then that's out of the question as well. January's "Gentleman's Agreement" precludes rules changes under the nuclear option (or its somewhat more genteel cousin, the "constitutional option," which I define as occurring at the beginning of a new Congress) initiated by either party's leader in this Congress or the next. In exchange for what, exactly? Well, not much. Certainly no promises not to filibuster judicial nominees, if that's what you're asking.
So what's the lesson here? Outside of the fact that the Gang of 14's deal has already been dead for nearly five years, I'm afraid all I can take away from these events is, "Senate deals are a waste of everyone's time."