May 24, 2005,
If we were inclined to take an optimistic view of the judicial-filibuster deal announced last night, we would start with the fact that the full Senate will be allowed to vote on the confirmation of Janice Rogers Brown, Priscilla Owen, and William Pryor. That would not have happened if Senate Republicans had not threatened to forbid judicial filibusters. We would continue, in an optimistic vein, to suggest that the deal sets a precedent that nominees as conservative as Brown, Owen, Pryor were not the menace to the republic that the Democrats have spent the last few years suggesting they are.
The pessimists, unfortunately, have a better case. The Republicans who signed the deal appear to have committed to allowing filibusters throughout this Congress. The Democrats who signed it committed to using filibusters only in “extraordinary circumstances.” But “each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.” This concession, if such it can be called, should have been superfluous: To filibuster a judge is an extraordinary act.
So what happens if a Supreme Court justice retires, and President Bush nominates a respected conservative jurist to replace him? If the Democrats filibuster Bush’s nominee, will the Republican signatories see it as a breach of the deal that justifies a rules change after all? There are several reasons for worry about these Republicans’ will to enforce the deal. First, according to one plausible reading of the text of the deal, they would have to accuse their Democratic colleagues not just of disagreeing about what constitutes an “extraordinary circumstance,” but of bad faith. Will they really have the gumption to make that accusation about their honored colleague from etc.? Especially after basking in the glow of mainstream-media praise for how this band of 14 brothers and sisters has been an example to us all?
Second, the deal will give the Democratic signatories a spurious claim to high-minded nonpartisanship. They will be able to say that allowing votes on Brown, Owen, and Pryor proved how reasonable they are and that their objection to Bush’s Supreme Court nominee should therefore carry more weight. That claim will not have merit, since the alternative to their allowing votes on Brown, Owen, and Pryor was their losing the ability to filibuster altogether. But it is entirely predictable that the claim will be made and taken seriously, and that this will further inhibit the Republican signatories from demanding that the Democrats adhere to the spirit of the deal.
Third, the very fact that the Republican signatories agreed to the deal suggests that they shrink from the task of ending Democratic abuses. In announcing the deal, the senators spoke as though they had averted a cataclysm. They spoke as though the nation were waiting breathlessly, afraid that the Senate’s comity would suffer and terrible consequences would ensue. (Appropriations bills will languish in committee: that sort of thing.) Will the Republican senators have any more willingness to end abusive filibusters next time around?
If this deal is to be taken seriously, it is up to the Republican signatories to signal that they will enforce it. A first step will be to clarify their interpretation of it. Senators Lindsey Graham and Mike DeWine, two Republican signatories, have said that the deal allows them to vote for a rules change if the Democrats filibuster in a way they consider abusive. The other Republican senators who signed it should say the same thing or else the deal really will be an unenforceable farce.
The next item of business should be for Republicans to work for the confirmation of constitutionalist jurists. The deal does not guarantee confirmation for anyone as George Voinovich’s surprise attack on John Bolton showed, there is always the possibility that some Republican senators will fall for any Democratic campaign, no matter how substance-less. This summer will then, in all likelihood, see a battle over the Supreme Court. We will have the full measure of this deal, and its durability, soon enough.