How I Stopped Worrying and Learned to Love the "Totally Unacceptable" Nuke Deal

The nuclear compromise played out remarkably quickly after the weekend, and followed basically the lines that I called "totally unacceptable" yesterday: allow the worst judges through, coupled with "extraordinary circumstances" language on future filibusters. Yesterday, I wrote that the problem with that deal was that the worst judge allowed through -- in this case, at least on grounds of ideological extremism, that would be Janice Rogers Brown -- would thus become the definition of less-than-extraordinary circumstances. For Democrats who were party to the agreement to join a filibuster of any nominee, including a Supreme Court nominee, who was any less "unhinged" than Brown (to use National Review's Ramesh Ponnoru's word), would be considered a breach of the deal. (Major Garrett said exactly that on Fox a few minutes after the deal.)

And yet, here we are tonight, and the deal is done. And I'll live with it. First, no one cares whether I think it's "totally unacceptable" or not. (That's apart from the more metaphysical question of who cares what I think about anything.) For that matter, who cares whether Barbara Boxer or even Harry Reid considers it "totally unacceptable"? It's the deal. It's how these 14 Senators have decided to cast their votes, and if the Dems had refused to agree to it, we'd be heading to a vote tomorrow in which Frist would probably win. Second, I think the language in the agreement about how every Senator will follow his or her "own discretion and judgment in determining whether [extraordinary] circumstances exist" in a vague way takes care of my concern. It's boilerplate language, but it makes clear that the judgment about future filibusters is independent of anything in the deal itself. In a way, it reminds me of the language in the Bush v. Gore decision where the Court declared that its use of the equal protection standard applied to this case only one a one-time basis. I see this as an agreement to confirm Brown and Owen one time only, to get this crisis behind us.

Third, I understand that compromise should always leave everyone a little disappointed. Some kind of compromise on this package of judges would have to have been developed even if the Nuclear Option had not been on the table. Some, maybe most, of the judges would go through. So if the deal had been a tiny bit less bad -- for example, if it had included Owen but not Rogers Brown -- I would have been ecstatic. A deal that someone like me would be ecstatic about probably wouldn't attract much Republican support. So this is a relatively small step down from a deal that I would have loved. (Still, it feels like negotiating with blackmailers.)

So, if this all sounds like rationalization because of the pure power-politics implications of a deal, maybe it is. Because those implications are really something. Frist put himself out there with the religious right, made this a matter in which some of them chose to speak in "the prophetic voice," from which no compromise is possible. The mistake Frist made was a small one at the time, and he probably didn't even know he was making it. But by enlisting these outside groups as partners and permanent allies, he cut off his own freedom of maneuver. When he finally realized that a critical mass of his own caucus did not want to blow up the Senate, he was trapped by outside forces. Now he's utterly ruined. John McCain and Lindsay Graham are setting the agenda in the Senate, while to the religious right, Frist is not a martyr to principle, but just an ineffectual leader, a guy who talks big but can't deliver.

(I saw Joe Scarborough on MSNBC -- whose insights into Republican dynamics always seem very solid -- describe Frist as the winner here in the long-run, because McCain will have forfeited the support of the far-right in the 2008 primaries, making it available to Frist. That could be right, but McCain was unlikely to get that support anyway, and there are several 2008 candidates -- Brownback, Santorum, Allen -- who already have a stronger base than Frist with that group and who haven't promised something big that they can't deliver. I think Scarborough's right about McCain, though, and he goes from a candidate the far-right is uncomfortable with to one who will now be "totally unacceptable" to them. It's a mutual destruction pact, and the Republican field for 2008 is now down to the second-tier. Or, in honor of new front-runner George Allen, let's say, second-string.)

If the goal of liberals is to block a truly extremist Supreme Court nominee, block Social Security privatization and more tax cuts, block Bolton, and then begin to shift the debate back to issues of economic security, health care, global leadership, etc., the best possible thing that can happen is for the White House and its agents, such as Frist, to lose their control of all the levers of power in Congress. That's indisputably what this deal does, and for that, I'll learn to love it.

Comments

[TomH]

Thoughtful and reassuring. Two concerns:

1) What leads Mark to believe the Dems were likely to lose? Some of the Repubs in the 6x6 faction had indicated their likely decision in the event of a nuclear vote, but others - like John Warner - never did. I'm haunted by the possibility that the Dems might actually have gotten to 51 if Frist had forced the vote.

2) What if the Repubs invoke the nuclear option in a supreme court vote? Lindsey Graham seems to be saying that Repubs can invoke the nuclear option if the Dems do something absolutely beyond the norms of civilized conduct, e.g., filibustering a supreme court nominee. If this comes to pass, will we be able to look back and say that the Dems won something from the 5/23 deal?

[Petey]

Reid has delivered peace in our time.

[Mark Schmitt]

In response to TomH, I don't know what the vote would have been if there had been no deal. But I think if they were on the verge of a deal, and it was plainly the Democrats who destroyed it, because they wanted to block Brown, that would have freed or forced John Warner to vote yes on the Option, probably providing cover for Collins and some others to vote with him.

It's clear that simply filibustering a SC nominee in theory is permitted, so that act in itself doesn't blow up the deal. Given the "individual discretion" on what constitutes "extraordinary circumstances," and on the other hand, the relative firmness of the no-nuke promise (for this Congress only), I think Graham was not speaking from the text.

[Michael Stickings]

I trust that last comment was meant sarcastically. Please see my own comments, which reference The Decembrist, here:

http://the-reaction.blogspot.com/2005/05/democrats-cave-no-filibuster-for.html

Mark's rationalization is compelling, indeed, but I'm not convinced, and for precisely the reasons mentioned by TomH. The Democrats -- the "moderate" ones who caved -- have given new life to a beleaguered Republican Party, which will no doubt seek to carry on the momentum generated by this moral victory. It may be true that Frist is ruined -- and, if so, good riddance -- but what we get are three extremist judges, including the worst of all, and the potential for more battles down the road.

After all, while Democrats like Byrd and Lieberman are playing nice and saying that they have "kept the Republic" and hailing "the bipartisan center," listen to what Republicans are saying:

DeWine: "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." What does that mean exactly? It means that Republicans will invoke the nuclear option to prevent a Democratic filibuster in less-than-extraordinary circumstances. But that's any nominee that falls within the undefined parameters of extremism of Bush's soon-to-be confirmed nominees like Brown and Owen.

Or how about McConnell: "The way I read it, all options are still available with the timing to be determined." Exactly. Well done, Democrats.

Or McClellan: "Nominees that have been waiting for a long time for an up-or-down vote are now going to get one. That's progress. We will continue working to push for an up-or-down vote on all our nominees." Uh, how? They'll find a way, I'm sure.

The point is, the moderate Democrats are claiming some sort of victory here, and it may be that the Republicans could have done better themselves. But it's important that Democrats remember who they're dealing with. McCain isn't the Republican Party.

We haven't heard the last of this.

[Michael Stickings]

The last comment I refer to is the one by "Petey" -- not, of course, the one by Mark.

[Petey]

"Given the "individual discretion" on what constitutes "extraordinary circumstances," and on the other hand, the relative firmness of the no-nuke promise (for this Congress only), I think Graham was not speaking from the text."

The text of the agreement is that the no-nukes promise is conditional on the "continuing commitments" of the "extraordinary circumstances" section.

DeWine asserted that it was the consensus of the Group of 14 that this means that they are individually free to return to the nuclear option if they feel the filibuster is being improperly used.

Peace in our time.

[Michael Stickings]

I believe it's better know as "appeasement". Where's Neville Chamberlain when you need him? After all, he said this in 1938:

"For the present I ask you to await as calmly as you can the events of the next few days. As long as war has not begun, there is always hope that it may be prevented, and you know that I am going to work for peace to the last moment."

I'm not one to use W.W.II analogies lightly -- and, surely, not all wars are the same -- but it seems to be that appeasing the Republicans will only embolden them and encourage them to go further. Now they know they can. If Brown and Owen are acceptable, who isn't?

[washerdreyer]

Michael, I can't tell if you're missing this, but Petey is quoting "Peace in our time" for a reason.

[marky]

I read on another blog that one (R) Senator said that one of these 3 judges would lose the up and down vote. Sorry I can't remember which.

It seems to me that we can't judge this vote until seeing if all 3 judges are confirmed (likely); the more interesting question is whether the (D)s will filibuster one of the remaning nominees.

By the way, I don't believe that taking the worst judge makes any difference----the Republicans don't admit that any of the nominees are inferior, so how can they say they've set a precedent? "Hey, you let Brown past, and she's horrible. You can't filibuster anyone now!"

I don't think so!

[Jeff]

I'd be stunned if the good guys had the votes -- I am pretty convinced we were one short, having McCain, Chafee, Snowe, Collins, and Warner, but neither Specter nor Hagel -- and no one else was even close to attainable in anything short of a rout that was never going to happen in a fight the GOP only would have started if they knew they could win.

GOP whips don't lose.

[The Heretik]

Everybody declares victory, but Bodies Bleeding Everywhere

What a mix of self the Senate is: self congratulation, self loathing and self deception. This article is linked over by me.

[RMG]

By the way, I don't believe that taking the worst judge makes any difference----the Republicans don't admit that any of the nominees are inferior, so how can they say they've set a precedent? "Hey, you let Brown past, and she's horrible. You can't filibuster anyone now!"

The operative phrase here isn't inferior - it's "ascribes to [x] judicial philosophy." As in: "Hey, you let Brown past, and she believes Lochner v. New York should be overturned too! You can't filibuster anyone now!"

[Anonymous]

Fascism is on the march.

[Oleary]

Ny first reaction is I like the deal...at least better than the probable alternative...all the judges get through, the nuclear option is exercised, the filabuster is on a slippery slope to extinction in ALL matters, not just judicial nominations..And we could retaliate with a Senate slowdown but we are always fighting uphill against a hostile media trying to get our message through as to why we are justified in doing it. I might also add that our side has not shown the mastery of public relations and propaganda that Rove and his team have. Our message discipline, while improved, remains spotty at best. All these things make me happy we got this deal.

And the biggest up-side is that Bush COULD, I emphasize "could," start taking the ADVICE clause more seriously.

Looking down the road, the downside could be an increased satisfaction with the Congress which could make democratic gains less likely in 2006. The radicals Brown and Owens could become the very models for the definition of "not extraordinary" thus greasing the skids for more radical judges to get up or down votes with no filabuster possible. And there could be a new era of "good feeling" in the Congress which would spur compromise on things like the destruction of Social Security (means testing or private accounts) on which we simply cannot compromise.

Right now, though, I think it offers a new beginning; a sort of "clean break" to borrow a phrase from the neocon lexicon. Bush is weak in the publics' mind right now and this weakens him further. Don't ever forget he and Rove were behind the scenes Geppettoing it up full tilt and they got rolled. They precipitated this crisis by renominating these judges hoping to drive a stake into the heart of the minority rights in the Senate. They failed and that's good for all concerned, with the caveats mentioned.

[emptywheel]

Mark:

Is it possible that "extraordinary circumstances" is understood by the Gang of 14 to mean "judges with legal disqualifications"? Assuming Saad and Myers will be filibustered, you've got one judge with a disqualification in his FBI file, and another with ongoing legal investigations. So it might be that only legal disqualifications stand the test of extraordinary.

[Marc Schneider]

I don't see what the Democrats really got from this, although I agree that they probably had no choice. The nominees all got through. ON the other hand, no, it's not "fascism on the march." Three judges aren't likely to make that much difference and I hope, hope, hope, that these are the worst. The others that I have read about seem much better. So, I guess what the Democrats got out of this was the ability to filibuster against worst judges later. But as people noted, if these three are the standard, how can they justify filibustering anyone else?

[murky]

Perhaps it's boiler plate, but it sure seems to promise the Dems nothing. I guess this is how people vote Republican--you imagine what really matters is too subtle to see at the press conference.

[howard]

i don't understand what the democratic dealmakers think they are in the senate for, and i suspect that all we've done is postpone the fight, but Petey has now (on at least two separate blogs, here and at matthew's place) used the neville chamberlain analogy, and Petey, it ain't funny and it ain't accurate.

[murky]

Isn't this as much a "failure of leadership" by Reid as well as Frist? Do you think Reid wanted this compromise? Are the Dem's not in disarray now? Or does Dem disarray just dent the status quo less than GOP disarray?

[Michael J.W. Stickings]

The Neville Chamberlain analogy, which Petey uses here and which I acknowledge more explicitly (yes, I do know where "peace in our time" comes from, and I know where Petey's coming from politically), isn't meant to be funny. But why isn't it accurate? Given widespread (and legitimate) skepticism of the GOP's willingness to compromise, especially given its ties to the evangelical right (which now, strangely, sees judicial reform as one of its core planks), it does seem that this deal is more appeasement than compromise. The Republicans have been appeased in order to avert "nuclear war". Reid and the rest of them can pat themselves on the back all they want, but their opponents won the day.

I agree with Marc Schneider, however, that this isn't "fascism on the march". As I've argued in this space before, it doesn't serve much of a purpose, aside from tooting our own self-righteousness, to label Republicans as Nazis or fascists or whatever. They're not. In the end, three judges may not mean all that much, for they're not extremist in any illiberal sense. I mean, they're not extremists as, say, Europeans of the last century would understand extremism. The problem is that their inevitable confirmation (and who really thinks any of them will go down?) will be but a prelude to more egregious Republican efforts down the road. As I said, this is a huge moral victory for the Republicans, if not for Frist, and they'll now feel emboldened to carry on.

[CTW]

mr. stickings:

while I too shy away from public use of inflammatory language like "fascism" (but in private?), I do see signs of what strikes me as a slide toward totalitarianism in the sense of total government control by a single political party. so could you briefly say why the following examples don't raise similar concerns for you?

- control of two branches of government with effective control of the third imminent
- control of all domestic public presidential appearances so as to eliminate any effective opposition opinions
- attempting to stifle critical reporting using various retaliatory methods
- changing procedural rules in ways that are arguably unconstitutional
- exempting the US from provisions of the geneva conventions in order to violate civil liberties of "detainees"
- gerrymandering in such ways as to eliminate the possibility of serious threats to one party's hold on congressional seats
- effective exclusion of the opposition party from governance at the federal level
- retaliatory methods by the governing party against its members who exercise independent judgment
- appealing to special interests groups using demagoguery unseen since segregation became unfashionable
[list truncated]

obviously this is not to suggest that our current position is equivalent to that of stalinist russia, nazi germany, franco's spain, etc, only that the collective extremism of these behaviors is like nothing I've been aware of during my adult lifetime, which spans five decades.

[Michael J.W. Stickings]

Fair enough, CTW. Having just read Frank Rich's latest column, on the bashing of Newsweek and the White House's scapegoating of the media to deflect attention away from the real story, I do acknowledge that there is at least the outline of totalitarianism, if I may put it that way, in the U.S. at the present time. And this is particularly worrisome from my detached perspective in Canada, where more or less single-party Liberal rule since 1993 has produced, well, absolutely nothing -- excapt a finance kickback scandal in Quebec that threatens to topple Paul Martin's Liberal government. (Dramatically, the speaker of the house had to break a tie on a non-confidence vote last week, thereby recusing the government). But I digress...

I seem to be flip-flopping on the "compromise". Like Mark, I'm trying to learn to love it, but it still seems to me as if the Democrats just lost a game of chicken that will allow Republicans to get more or less what they want. And, as you point out, these Republicans (under Karl Rove's explicit guidance, I might add) are nothing if not extremists in their outlook, trying to secure absolute majority status for generations to come. Yes, the signs of at least a soft totalitarianism are there for all to see.

[Nell]

Still, it feels like negotiating with blackmailers.

That's because it is negotiating with blackmailers. As the students in the Filibuster against Frist said in their eloquent statement:

How large is the difference between acting illegally and using the threat of illegal action to achieve your ends?