In their attempt, in a Weekly Standard article, to defend Senator John McCain’s elevation of senatorial privilege over efforts by the Bush administration and the Right to get conservative judges confirmed, Adam White and Kevin White miss important points, simultaneously providing an incomplete version of history.
Given the presence of only fifty-five Republicans in the Senate (and the tie-breaking vice president), [then-Majority Leader Bill Frist] could afford to lose no more than five votes — and it quickly became apparent that Frist would lose at least six. Roll Call reported that Lincoln Chafee and Olympia Snowe opposed the option, and that Mike DeWine, Lindsey Graham, and Arlen Specter were possible if not likely defectors as well. The Washington Post reported that Susan Collins, Chuck Hagel, and John Warner expressed substantial misgivings about the scheme. And, of course, there was the threat of other surprise defections, just as George Voinovich surprised everyone by suddenly opposing the John Bolton nomination later that year.
Thus, they intimate that Frist was actually relieved by the Gang of 14 deal and suggest he encouraged it behind the scenes.
Of course, had it been as the authors suggest, there would have been no need for a Gang of 14 deal. Frist would not have pressed the issue, and the Senate could simply have voted the proposal down had Frist persisted. At the time, however, with the 2006 elections on the horizon, many senators were desperate to avoid such a vote exactly because of circumstances the Whites acknowledge: conservatives had succeeded in making President Bush’s judicial nominations a political hot potato for Republicans.
The authors may be correct in their speculation that a number of GOP senators were potential defectors. One of the major points of demanding that judicial nominees get an up-or-down vote, however, was to impose political accountability: to make the McCains, DeWines, Grahams and the rest go on record. Given the Whites’ accusation that McCain detractors share “a fundamental misunderstanding of both the facts of that [judicial nomination] fight and the larger principles at stake,” this is rather a glaring omission on their part.
The Gang of 14 deal was, for all intents and purposes, the deal that then-Minority Leader Harry Reid offered Frist the previous week. The Majority Leader turned Reid down flat. He opted to press ahead — something it would have been exceedingly strange to do if he secretly approved of the deal’s terms, as the Whites suggest. Frist obviously did that because he perceived, given the pressure from conservatives, that if compelled to be publicly accountable, many of the potential GOP defectors would vote in favor of ending filibusters despite their misgivings.
Forcing our political representatives to tell us where they stand is a fundamental democratic principle. Even losing a “nuclear option” vote would have been valuable for conservatives: It would have identified which Senators believed — like Sen. McCain obviously believes — that preserving senatorial privilege took precedence over their constitutional duty to consent to, or withhold consent from, judicial nominees.
Besides preserving their privilege (which allows a single senator, for absolutely no reason, to prevent a president from fulfilling his constitutional obligation to appoint officers of the United States, without whom the government cannot function), McCain and his confederates were most determined to avoid accountability. That was the essence of the Gang of 14 deal. The senators pretended, in a bluster of high-minded twaddle, to resolve the controversy without disturbing the chamber’s procedures. It was nonsense.
At the time, the president had made ten nominations that Democrats (and some Republicans) blocked. Three of them had been so abused by the senatorial intransigence that they finally withdrew their names from consideration. Of the remaining seven, the Gang of 14 agreed there would be a vote on only three. It then went on to preserve the filibuster, purporting that it could only be invoked in “extraordinary circumstances.”
That this was an utterly empty commitment was palpable from the agreement itself. The Whites assert:
While the agreement’s “extraordinary circumstances” clause was vague and perhaps even unenforceable, the Gang never allowed it to be used successfully to allow a filibuster–most likely because the Gang of 14 also did not foreclose ultimate resort to the nuclear option in such situations.
This is preposterous. The Gang of 14 deal itself continued four of the filibusters, two of them conclusively. As the Whites concede, the deal “cited two nominees (William Haynes and Henry Saad) whose fates would not be decided by the agreement, effectively killing those nominations.”