All this may be academic, though. The most crucial passage in the agreement may prove to be this one: "Each signatory must use his or her own discretion and judgment in determining whether such ['extraordinary'] circumstances exist." As a practical matter, this applies only to the Democratic signatories, since no Republican has ever voted to filibuster a Bush judicial nominee. "
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He is making excellent points. The bottom line is that this agreement binds the Republicans, but does not bind the Democrats, because the loop hole for them is so big, you can drive an entire fleet of trucks through it.
Ed Whelan (Bench Memos) argues that “…the provision that ‘each signatory must use his or her own discretion and judgment in determining whether such circumstances exist’ is double-edged: A Republican signatory is fully entitled to determine that ‘extraordinary circumstances’ do not exist and that a Democrat signatory’s contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory’s determination.” (Pers. comm.) Or, in other words, the clause “nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist” means that if Democrat signatories filibuster when Lindsey Graham and Mike DeWine (et al.) think the circumstances are not extraordinary, then they have their “out” clause. They can can rightly say that the nominees should not have been filibustered because the circumstances were not extraordinary. Thus, the GOPers would be released from their commitment to vote against the nuclear option. That reading is more plausible to me than the alternative reading that Graham and DeWine were majorly duped. Now it is up to them to hold the Democrats’ feet to the fire. Are they up to it? Graham surely is, and DeWine is mouthing the right words. That makes 48 GOP non-signers + 2 who will hold Dems to the agreement = 50. In theory, it looks good.
Every other Rat in the world will have to come crawling to them to get their vote for a filibuster of a Supreme Court nominee.
And every conservative group will have to "consider" their "feelings," too.
from the article:
All this may be academic, though. The most crucial passage in the agreement may prove to be this one: "Each signatory must use his or her own discretion and judgment in determining whether such ['extraordinary'] circumstances exist." As a practical matter, this applies only to the Democratic signatories, since no Republican has ever voted to filibuster a Bush judicial nominee.
The seven signatories, that is, have now declared that they will decide how to vote on judicial filibusters rather than take directions from the party. Two of them, Robert Byrd and Daniel Inoyue, probably did so largely to preserve "Senate tradition"; but the other five--Mary Landrieu, Joe Lieberman, Ben Nelson, Mark Pryor and Ken Salazar--are all generally moderate, and all from red states except Lieberman. Their inclinations and political interests diverge from those of Barbara Boxer, Ted Kennedy and other far-left blue-staters.
If left-wing Democrats want to filibuster another nominee, they will have to persuade Minority Leader Harry Reid to risk another nuclear confrontation and persuade at least one of the moderate compromising five, plus Byrd, Inoyue and every single uncompromising Dem, that it's worth it. It could happen, but we're not betting on it.