Bench Memos

NRO’s home for judicial news and analysis.

Re: Response to Franck


I’m totally with Ramesh on this one. We’re lawyers over here, and there is thus understandably a lot of hyper-analyzing of the MOU about what triggers what, whether the determinations like whether “extraordinary circumstances” exist are unilateral or mutual, etc. It’s important to remember here that this document is mainly a piece of theater (or at least a prop for future pieces of theater, when the filibusters inevitably go overt again). It’s not enforceable in a court of law. The only place it will ever matter is in the court of public opinion. There, it gives the Dems much more ammo because, very simply, the Republicans appear to have promised to do something (i.e., refrain from a rule change), and the Dems appear to have (and in fact have) promised to do nothing — they can still filibuster in “extraordinary circumstances,” and since the Republicans did not draw them out on what that means, it means they can do it whenever they want to do it. After all, they’ve been saying extraordinary circumstances justified what they’ve been doing all along.

Bottom line: (a) The press will do nothing when the filibusters go overt again. Indeed, I have to say “go overt” because the media realizes the filibusters are not over even now — the agreement itself suggests that one way or another several nominees will be stalled. But (b) the press will scream “breach” if the GOP renews talk of a rules change. That’s the way it is. The rest is all details that will wash over people no matter how much we lawyers seek to breathe life into them.


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