Bench Memos

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Re: Response to . . . Me


Unless I missed something, Ramesh and Andy appear to disagree with each other as much as with me–or to agree with me more than they think. Ramesh is quite right that the way to read the Memorandum of Understanding is not as though we were lawyers or judges in a contract case–which is why I turned from the legalistic “letter” to the more political “spirit” in my posting this morning. The final determinant of the meaning of this “corrupt bargain” (cf. 1824 for that phrase) is not what we poor interpreters say about it, but the willingness of the GOP Senators to “go nuclear” (or “go constitutional” or “go all Byrdie”) when the Democrats suddenly act on their presumptive right to view as a nomination as “extraordinary.” I just find it unlikely that among the Sanctimonious Seven–McCain, Warner, Snowe, Collins, DeWine, Graham, and Chafee–we will find at least two with the nerve to respond to what even those seven believe are patent abuses of the bargain by the Democrats.

Andy seems to agree with me, that the most compelling reading of the deal is one that favors the Democrats, who retain freedom of movement in future, while the Republicans bound themselves to more constraints from which they would have to free themselves.

All around, our disagreements seem slight in the end, don’t they? Like Ed Whelan, I would like to hold the Democrats to some principled reading of the deal. But what we all think over here is not going to have much effect on the gang led by Senator Byrd.


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