Posted on 05/24/2005 8:20:40 PM PDT by CHARLITE
I agree with John Podhoretz that politics in the real world calls for some compromise — at least when a matter of principle is not involved. But he’s dreaming if he really thinks the filibuster “compromise” struck last night in the Senate is a “victory.”
Let’s say the signatory senators had not bothered to write up the kumbaya agreement with all those pretty phrases about “mutual trust and confidence” and “good faith” and “spirit and continuing commitments” (gossamer, if ever there was, rivaled only by “should only be filibustered under extraordinary circumstances” in the depth of its meaninglessness).
Let’s say, instead, that they simply gave us the bottom line: (a) three of the president’s nominees get an up-or-down vote (i.e., exactly three of the pending seven left standing after the Democrats — in that spirit of compromise — whittled down from the original ten); (b) the Democrats remain free to filibuster (but only on the strict condition that, uh, well, that the Democrats feel like filibustering); and (c) the Republicans, on the brink of breaking four years of obstruction, decide instead to punt (and on the eve of a likely battle over a Supreme Court vacancy, no less).
Sound familiar? Yes it does: It’s the deal that Senate Minority Leader Harry Reid offered a week ago — and that was flatly rejected as paltry and unprincipled.
The deal, moreover, says, “Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith.” Well, their responsibility under the “Consent” part of the Clause is to confirm or reject the president’s nominees. Period.
Yet, it is in the very next sentence that the purported right to filibuster — in plain English, to avoid the responsibility of confirming or rejecting the nominee — is preserved. And it is preserved without even the pretense of an effort at clarity about what conceivable “extraordinary circumstances” could justify the avoidance of this constitutional responsibility the signatories are going to exercise in good faith…except when they unilaterally decide not to.
Ah, but there is one thing the senators do make a clear assertion about: “We believe that, under Article II, Section 2, of the United States Constitution, the word ‘Advice’ speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations.” If they believe that, they must be reading a different Constitution.
As I’ve argued here before, the structure of the constitution, the plain language of the appointments clause, and Alexander Hamilton's discussion in The Federalist Papers of the Senate's contemplated advisory role all indicate that the prerogative to nominate is the president's alone. Article II, Section 2 does not speak to Senate consultation about nominations at all.
This gratuitous section of the agreement screams “set-up!” — and one has to wonder if the Republicans realize how badly they have been rolled here. Let’s play it out.
President Bush is obviously not going to consult with Democrats before making nominations — certainly not in the sense of giving them a meaningful role in choosing nominees. But since Democrats have now gotten Republicans to sign on to this contra-constitutional “consultation” provision, they will have a demonstrative leg up in arguing that they are fully justified in filibustering any nominee on whom they were not consulted. After all, they will argue, the president will have violated the Constitution since even Republicans have expressly conceded that its “advice” requirement calls for consultation with Democrats. (Can you not already envision Senator Reid or Senator Leahy waving the agreement in the air while a thoughtful Katie Couric nods solemnly? Can you not already read the editorials and op-eds citing this agreement in the New York Times and the Washington Post?)
The Republican signatories (echoing some of the wishful-thinking commentary about the agreement) can blather all they want about how the deal permits them to go back to pressing for the rule-change if the Democrats filibuster. But bet on it: the Democrats, with all the steely discipline they have exhibited time and again, will counter that a president’s failure to consult, in violation of the constitution, is most certainly an “extraordinary circumstance,” triggering a filibuster. Having agreed in writing that the president has such a constitutional obligation, the GOP signatories (who, of course, don’t want to challenge the filibuster rule anyway) will be hard-put to object.
So, the agreement strikes a deal that was properly rejected as unacceptable only a few days ago. Risibly couched in the rhetoric of “compromise,” it freezes in place an outcome in which 70 percent of the ten nominees at issue have been defeated. To the extent it says anything of immediate consequence, it is unenforceable. And to the extent it says something definitive, it is wrong and it lays important groundwork for future filibustering. Some victory.
Withal, John dons rose-tinted glasses and says the deal “establishes the principle that conservative judges have every right to serve on the higher benches even if Democrats can't stand it.” In this straw-grasping lies the truth about just how badly defeated conservatives are here.
Does anyone really think it needed to be established that conservative judges “have every right to serve on the higher benches”? That is self-evident. But, in today’s arrangements, notwithstanding a president reelected with more votes than any president in history and a one-sided 55-45 margin in the Senate, that which is self-evident somehow needs to be reestablished as a “principle” whenever a determined minority objects.
Alas, reestablishing a principle already long established turns out to be hard work — the vigor for which appears sadly lacking.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.
We can always count on the Republicans to seize defeat from the jaws of victory.
No more contributions to Republican fund raisers. I am only going to direct to those who stand for conservative values.
If outstanding nominees are sacrificed in a "compromise" then the whole arrangement is inherently evil. Years ago, the late Senator William Henry Seward, Whig-turned-Republican-NY, in fact declared all legislative compromises to be "essentially vicious." There is no victory except for the Democrats. Tom Daschle again was the big winner of the 2004 elections!
Does anyone but me think this is McCain's long awaited payback of Bush for what he perceived as mistreatment in the South Carolina Primary of 2000? Payback is a b**ch as they say and now it's time for the Republican leadership to payback their own turncoats.
And, we can sure bet on how those seven "Republicans" will be voting on the other seven nominees.
Let them get it from all of the illegals they are handing everything over to.
McStain is the new Ross Perot. We need to make sure he is sent into obscurity, like Ross.
Yeah, just said pretty much the same thing on another thread. McCaine thinks by pulling this stunt he's pretty much hobbling Bush by making him a lame duck for the next 3 1/2 years.Thus paying Bush back from those primaries that he lost,and getting his revenge! And I think he must feel this move will make him a hero in some groups eyes, and he will just sail into the presidency in 2008. How wrong he is!
I am betting McCain and Graham are dusting off their mantles for their "Profile in Courage" awards they plan on receiving from Teddy's clan for this betrayal of their party. I'm sickened by the whole lot of them and the Republic "leadership" that couldn't reign in these runaway children. LBJ would have arm twisted and Senators of his party that backstabbed his leadership when he was in the Senate - Frist just doesn't have the gonads for this war!
McConnell or Santorum would have be more forcefull advocates and enforcers. I suspect it was this kind of weak-knee'd wishy-washy leadership that make Senator Nichols hang it up and head back to Oklahoma where men are men! Unless he reverses this travesty and soon, Frist better get his medical CME in order as he'll be back cracking chests come 2008 and not having the Mrs. plan on redecorating the second floor of 1600 Pennsylvania Ave.
Time to go BRAC on their butts. Close every base in Maine and Arizona. Half in Virginia. You get the idea.
This could all have been avoided if McCain along with the other Keating Five had been ejected from the Senate 25 years ago.
The first wave of confirmations will now occur after the (wink) democrat victory (wink) then the rest of the ten will follow in short course. The RAT surrender was given a face-saving form and Frist is not compromised by this side deal. Bush's most couservative and controversial judges will now be confirmed and the RATS have cut the ground out from other filabusters having surrendered the high ground.
Yes. I'll go farther: I believe it is time for serious people, even us educated in the public school rah-rah system, to begin to question whether the great experiment is any longer worth saving, or fighting for.
I have long agreed with you about lack of gonads, but now I am suspicious. I think they talk one thing to their constituents, but don't really care. It's great posturing, but in the end, posturing is all that matters, as long as state power, and, hence their power, continues to metastasize.
That would hurt George Allen, who's lookig like our best hope for 2008.
Herman Melville
No, the liberal GOP Seven won't be voting either way on the other nominees because the Democrats won't allow a clear up-or-down vote on those, as I understand this foolishness.
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