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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.

Posted by Mark Schmitt on May 22, 2005 | Permalink


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Agreed, Mark, the precedent of a Brown confirmation would set a threshold too low for anyone to stumble over.

I have a problem with the "extraordinary circumstances" condition. It seems extraordinarily vulnerable to divergent interpretation. In difficult caes, who could we find to serve as a mutually agreeable arbiter of disagreements as to whether the bargain had been kept?

It would take someone of lofty standing, unusually dispassionate temperament, and surpassing wisdom. Why, it would take someone with ... with ... the wisdom of a judge!!!

Posted by: RonK, Seattle | May 22, 2005 4:29:03 PM

please help me here

isn't the battle over whether the threat that republicans will challenge the method by which the senate changes rules - two thirds required to change the rules vs a majority required to change the rules

all the talk about specific judge nominations and potential compromises focuses attention from what i think is the real issue

Posted by: | May 22, 2005 5:11:29 PM

We're like Herman Kahn? Since he was a partial inspiration for Kubrick's Dr. Stangelove, I'll take the comparison as mostly a compliment. ;-)

Posted by: DHinMI | May 22, 2005 5:21:50 PM

"isn't the battle over whether the threat that republicans will challenge the method by which the senate changes rules - two thirds required to change the rules vs a majority required to change the rules"

In effect, yes. But the issue at hand is actually a bit more subtle.

The key thing to keep in mind is that changing the rules to require a majority to change the rules requires a two thirds vote. That is not what the nuclear option would do. Instead, it would set a (perfectly valid, IMHO) precedent that all existing and future rules can be abolished by the majority. If a post-nuclear option Senate were to unanimously pass a rule saying it took 55 votes to change the rules, that rule itself could be abolished by a majority vote.

Posted by: Petey | May 22, 2005 11:45:23 PM

If a voting body can chagne its rules at any time, by will of a majority, effectively has no rules ... and it stands in perpetual jeopardy of falling into chaos.

In a voting body of more than two members, there is no such thing as THE majority.

Order of magnitude, there are as many distinct 51-member majorities in the 100-member Senate as there are oxygen molecules in the Capitol Rotunda.

Posted by: RonK, Seattle | May 23, 2005 1:51:29 AM


How do you think the House is organized?

Posted by: Petey | May 23, 2005 2:40:11 AM

While there are no potential Supreme Court nominees that are more extreme philosophically than Brown, there are others that are worse, and I expect Bush will go with one of them. After all, his main goal is to ensure the Court legislates the Republican platform, so why not pick a career politician instead of a judge? The spin machine would point out that Earl Warren was an elected official without judicial background.

Posted by: Alex | May 23, 2005 4:01:30 AM

Petey -- The House does adopt its rules by majority vote, but it does not adopt its general rules at will, at any time. Each time it does adopt them (at the start fo a session), it adopts rules and structures and assignments calculated to keep democracy from breaking out.

From time to time, at will, it adopts rules to govern the action of the general body on each particular bill. These likewise are preformulated to make sure democracy doesn't break out on the floor.

In the smaller Senate, with margins narrower in absolute numbers, with actors less aligned and less beholden to party leadership, results are less predictable.

It seems likely the effect of a brush with chaos would be the adoption of governing structures even more restrictive than House Rules, creating a politically vestigial upper body ... but the outcome is not a priori determinable.

Posted by: RonK, Seattle | May 23, 2005 11:37:41 AM

More and more I think that the real purpose is simply to break the fillibuster. Bush has gotten all but 10 of over 200 nominees confirmed, and the limit of who's confirmable is extremist whackjob hardcore nutcase. Those who fit only three of those four terms slide through without trouble.

Altering the Supreme Court requires only 2-3 hardcore right-wing justices - one to replace Rhenquist, one to replace O'Connor. There is a possiblity of turning a serious whackjob down (e.g., Bork), but we wouldn't block more than one or two. The GOP has *got* to have a nice list of a dozen rightwingers with clean records (or records which have some dirt, but not the sort of dirt which would make for nice soundbites). And knocking out one doesn't stop the second, or the third...

So it just can't be for the Supreme Court, and only for the current nominations in the sense that the GOP feels that getting 99% of what they wanted is an injustice. If that's the case, then *not* completing the destruction of the fillibuster would be an aberration.

Posted by: | May 23, 2005 12:52:56 PM

Bush is in commanding position re SCOTUS. In my view, the "real target" is the DC Circuit.

Posted by: RonK, Seattle | May 23, 2005 1:00:15 PM

Yes. DC Circuit is the key. It's where many of the high-stakes petitions for review of federal agency action wind up.

Posted by: fnook | May 23, 2005 3:24:00 PM

I agree that Frist would have to go if he fails since he has put too many of his Republican colleagues on the spot and for reasons linked mainly to his own Presidential ambitions. If it's true that almost half his caucus does not want this vote and he resisted compromise, a loss by Frist would be devastating. He can't afford that many angry Republican senators on a vote that can be used in campaigns, featured in editorials etc. Not only are many Republican members afraid of the religious right (and potential primary opposition) but in many cases they are also afraid to appear too conservative as well. Thus Frist violates the first rule of leadership -- don't put the members needlessly on the spot.

Posted by: Ruth Fleischer | May 23, 2005 3:59:44 PM

Republicans just won the compromise.

Posted by: The Heretik | May 23, 2005 8:07:33 PM

"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."

You should not be happy.

Posted by: Petey | May 23, 2005 9:31:53 PM

Owens, Brown -and- Pryor.

But hey, we've "preserved" the filibuster.

A pyrrhic victory indeed.

Posted by: shinypenny | May 23, 2005 9:56:45 PM

Here's what happened:

Instead of moderate Republicans siding with unified Democrats to protect the filibuster (and hence indirectly to vote down Bush's extremist nominees), moderate Democrats have sided with unified Republicans to guarantee confirmation for three of Bush's extremist nominees without effectively closing debate on the nuclear option.

So what have the Democrats won? Nothing. Absolutely nothing.

You are right, Mark, to have said that a compromise would have been "disastrous" for Frist. Which is precisely why this isn't anything like a compromise.

This is a huge moral victory for the Republicans, just a time when the Democrats had assumed moral leadership on the issues (Bolton, social security, etc.).

Now we have Owen and Brown. What's next? Surely the Republicans must feel that they can get their way now that the Democrats, disunited as ever, have caved.

My take:


Way to go, Sen. Reid.

Posted by: Michael Stickings | May 24, 2005 12:36:05 AM