Monday, May 23, 2005

NUCLEAR WATCH Something for nothing. That's the only way to describe the deal reached today to avert the nuclear option.

Nuclear option supporters get floor votes on the President's most controversial nominees--there's your "something." But what do opponents get? A worthless guarantee that the nuclear option is off the table as long as judicial filibusters are restricted to "extraordinary circumstances."

Why is that guarantee worthless?

Because it leaves some of the very people who have debased the institution by backing the nuclear option in a position to judge what constitutes "extraordinary." Here's Sen. Mike DeWine (R-OH):

Some of you who are looking at the language may wonder what some of the clauses mean. The understanding is--and we don’t think this will happen--but if an individual senator believes in the future that a filibuster is taking place under something that’s not extraordinary circumstances, we of course reserve the right to do what we could have done tomorrow which is to cast a yes vote for the constitutional option.
It's not difficult to see how this unfolds.
1) The President forwards the Senate an extreme Supreme Court nominee; 2) Democrats, citing the nominee's radical record and the recent agreement, filibuster the nominee; 3) Republicans charge that Democrats have broken the agreement, and threaten to engage the nuclear option.
Then we're right back where we started. Except that in the meantime, Democrats have allowed votes on three radical nominees.

They've kicked the nuclear option fight down the road--and bribed its power-hungry proponents for the privilege.

It's a classic something for nothing.

UPDATE: A prescient Josh Marshall said much the same thing (more succinctly) last week:

If the filibuster is 'saved' today at the cost of letting the most constitutionally noxious nominees go through, do we really imagine that the pressure [on nuclear option opponents] will be any less when we get into a Supreme Court battle? The question answers itself. If they can't withstand the pressure now, they certainly won't be able to withstand it then. So such a deal, as near as I can figure it, would 'save' the filibuster in an entirely meaningless way, a right the minority would continue to hold so long as they agree never to use it.
UPDATE UPDATE: Most Senate Democrats have spent the day spinning the press. But Sen. Russ Feingold (D-WI) is having none of it:
This is not a good deal for the U.S. Senate or for the American people. Democrats should have stood together firmly against the bullying tactics of the Republican leadership abusing their power as they control both houses of Congress and the White House. Confirming unacceptable judicial nominations is simply a green light for the Bush administration to send more nominees who lack the judicial temperament or record to serve in these lifetime positions. I value the many traditions of the Senate, including the tradition of bipartisanship to forge consensus. I do not, however, value threatening to disregard an important Senate tradition, like occasional unlimited debate, when necessary. I respect all my colleagues very much who thought to end this playground squabble over judges, but I am disappointed in this deal.

CONTRAPOSITIVE is edited by Dan Aibel. Dan's a playwright. He lives in New York City.