Bench Memos

NRO’s home for judicial news and analysis.

Letter or Spirit?


I am not sure I can agree with the favorable interpretation of the filibuster compromise offered by Ed Whelan (here in chambers), or Ramesh Ponnuru and John Podhoretz (over in The Corner). Is the deal reached in Part II.B of the memorandum, in which the signatories of both parties pledge themselves to oppose any change or reinterpretation of the filibuster rules for the duration of this Congress, contingent on what the Republicans think of the Democrats’ claims about “extraordinary circumstances” in Part II.A?

The letter of the agreement suggests the answer is no. “[E]ach signatory must use his or her own discretion and judgment in determining whether such circumstances exist,” which suggests that these fourteen senators are individual free agents on whether to filibuster. But “we commit to oppose the rules changes” seems pretty unequivocal, and the introductory clause of the sentence doesn’t look conditional to me.

But John P. notes Sen. DeWine telling the Washington Post last night that he views the spirit of the deal as broken if the Democrats filibuster under circumstances that the Republicans cannot agree are extraordinary. In practice, any two of the signatory GOP senators can make good on that by bringing 50 votes to the floor to exercise “the Byrd option” (as Mitch McConnell calls it). We’ll see if they can muster the nerve they lost in recent days.

There is reason to be pessimistic about this in the fact that the Republicans acceded to the tacit proposition that the Myers and Saad nominations represented “extraordinary circumstances” already. Would Democrats care to explain publicly what the grounds were for blocking those two for the rest of this Congress?

There is another blow here, and it wounds more deeply. All the talk about preserving the traditions of the Senate in this agreement has it exactly backwards. The Democrats already broke with those traditions, and this deal endorses the new order of the ages, albeit under “extraordinary circumstances” that remain to be defined. In the long history of the filibuster since John C. Calhoun, while its practical use and intent has often been simply to obstruct, the only defense any senator has ever made of it in public is not that it is a weapon of mass obstruction, but that it is a delaying tactic, a defense against hasty majorities, an invitation to full and leisurely debate on the floor before decisions are made. Even in recent weeks this has been the refrain of the Democrats.

McCain’s Sanctimonious Seven (sorry, I left out Chafee in an earlier reference to the Six) have been snookered by that old vulture Robert Byrd into a new understanding of the filibuster–that it may be legitimately used, and legitimately defended, as a form of absolute obstructionism by a party that has the votes to prevent cloture. Not the principle of measured deliberation, but the principle of minority rule–an essentially anti-republican principle–has been enshrined in this agreement. Once again in his long career, it is Byrd who has changed the rules, and without seeming to have done so.


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