Back From the Nuclear Brink

The good folks at The Next Hurrah blog continue to be like the RAND Corporation of the 1950s or Herman Kahn's original Hudson Institute: constantly gaming out possibilities and the moves several steps ahead for all aspects of the Nuclear Option.

The contributor who signs himself RonK, Seattle (who is also a frequent and welcome commentor here) has a very good insight into the "failsafe" option, one that ought to be giving Bill Frist nightmares. Under his scenario, a handful of Republican moderates can stop the option in its tracks to buy time and essentially take control of what happens next. Let me try to explain it as simply as possible: the cloture vote on Justice Priscilla Owen fails. Frist asks the chair to rule that filibusters are out of order on some judicial nominations. The chair so rules. Reid appeals the ruling of the chair. That appeal is debatable -- that is, it can itself be filibustered. So Frist has to move to table the appeal, which is not debatable.

At that point, the Senate votes, presumably along the lines of support for the Nuclear Option itself. But not necessarily. Some number of Republicans could decide to vote against the motion to table. Combined with the votes of all the Democrats and the Republicans who oppose they option, they would defeat the motion to table. At that point, the underlying question returns: Reid's appeal, which Democrats can now filibuster. But everyone is now on record, and the compromisers who made it happen are now in total control. At any point, they can announce that they are switching their votes on a tabling motion, or that they are switching their votes in favor of Reid's appeal. Or, they can hold out for a compromise.

I heard Bob Schieffer hint at something like this this morning while interviewing Senators Durbin and McConnell. Both said they want to get this over with, but they're not the compromisers.

Make no mistake, this is a terrible outcome for Frist, because he gives up all control over the highest-stakes move of his career. And I also think it creates more problems with other members of his caucus. I am willing to be that he has Republican Senators who are saying to him that they are willing to vote for the Option if he guarantees it passes, but don't want to be out there on record voting for it and have it fail and be a massive embarassment. So just the possibility of the failsafe option creates uncertainty, which is his enemy.

A compromise is also disastrous for Frist, for a hundred reasons. It will destroy his credibility with the religious right that he charged up on this issue, and it will put McCain and/or Lott permanently into the drivers' seat in the Senate, an outcome that's not only bad for him but for his patrons in the White House.

Reid, on the other hand, has a much freer hand to operate. He knows where all his votes are, and he can handle compromise -- not any compromise, but there's nothing disastrous about an agreement to let some judges go through, along with some kind of language about the circumstances under which the compromisers would support a filibuster. After all, some of the judges would go through under any circumstance, because they have some Democratic support.

Any deal will presumably include an agreement by whatever number of Senators are participating to let some judges go through, block some others, and some language about the "extraordinary circumstances" under which members might join a filibuster in the future, in exchange for all of them voting against the nuclear option. It's very unlikely that a deal will happen before Tuesday, but I could see RonK's option, under which the compromisers essentially stop the action and buy time.

In theory, I don't have a problem with the "extraordinary circumstances" language. Because a filibuster will always involve extraordinary circumstances. It is not, as I never get tired of pointing out, a supermajority. And Democrats know full well that they lost the election, they can't just block every nominee until Bush agrees to appoint Cass Sunstein or Ron Dworkin to the Supreme Court. And they can't control all their votes even if they wanted to. So "extraordinary circumstances," in and of itself is just a matter of stating the obvious.

But if "extraordinary circumstances" is coupled in a deal with an agreement to let either Priscilla Owen or Janice Rogers Brown's nominations go through, then it is totally unacceptable. That's because in that combination, Brown or Owen would come to define the line of "extraordinary circumstances." That is, assume Brown goes through -- after that, anyone with views less extreme than Brown would implicitly be considered not extraordinary. Bush could name Brown herself to the Court and Democrats would be paralyzed. And the problem with that is simply that there are no possible nominees to the Supreme Court whose views are more radical than Justice Brown. (I'm open to correction on that, but from what I know of folks like Michael Luttig, Michael McConnell, John Roberts, Edith Jones, and others, none adopt quite as aggressively an activist libertarian position as Brown.)

So I would be happy to see a deal bring this confrontation to a close, but it cannot be a deal that gives Bush a free pass to name anyone he wants to the Court.