Politics vs. Law
I agree entirely with Matt, Andy, and Ramesh that the anti-cloture reform agreement is a political rather than legal document. But politics and law are not so easily separated in a political culture that continues to value the rule of law. My limited objective in construing the legal meaning of the agreement has been to refute legal interpretations of that document that would unduly constrain Republican signatories from later deeming themselves released from their promise not to pursue cloture reform. If a wrong legal understanding of the agreement becomes accepted, the political challenge will become all the more difficult.
By the way, Andy,
who you calling a lawyer “over here,” Keemosabe? I’m inordinately proud of never having attended law school!
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.
Stalwart principles and Sharp Analysis
are always on display at the No Left Turns blog by our friends at the Ashbrook Center. See this particularly by the redoubtable Joe Knippenberg, on last night’s deal and on the principles that should guide interpretation of “advice and consent.” Click on the “Comments” link at the end of his posting to see Joe expatiate further on this subject in response to others.
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.
Response to Franck
Matt, I think it’s a mistake to view the memorandum of understanding as though it were a piece of legislation or a legally binding document. It is an entirely political statement. Both sides are trying to spin it their way now, and there’s no reason for either side to disarm–especially since the somewhat opaque “in light of” phrasing makes it possible to interpret it in several ways.
From Hotline’s “Last Call”:
DNC Chair Howard Dean, on the filibuster deal: “I would be hesitant to say it’s a win for the Democratic Party” (AP). MoveOn invited supporters “to a victory conference call” with Senate Min Leader Harry Reid (Last Call! sources).
The Hard Spin
An e-mail out today from the Democratic Senatorial Campaign Committee:
By now I’m sure you have heard about the last night’s historic agreement that ended the Senate standoff over the use of the filibuster and protected our rights to filibuster a Supreme Court nominee. But if you ask me, the media has been missing the aspect of this agreement that will have the longest-lasting impact: Bill Frist lost today. Badly. KJL
The Republican Leader put his reputation on the line. Pat Robertson, Gary Bauer, and the rest of the right wing fringe were counting on him to succeed in his effort to abuse his power and change the rules. They dreamed of the day when every right wing judge would get a spot on our federal courts every time. He has failed.
Frist’s right wing allies are furious that he could not deliver on his promises. James Dobson, founder of Focus on the Family, called the deal a “betrayal” and said that he and his conservative allies share “disappointment, outrage and sense of abandonment.” He vowed that his followers would remember on Election Day those who “betrayed their trust.” Bill Frist needs the right wing power brokers on his side to win the 2008 presidential primaries. His hopes for victory just took a serious hit.
It gets better. Seven moderate Republican senators abandoned Frist’s efforts to change the rules to appease the right wing. His grip on power over Senate Republicans is slipping. For Bill Frist, the nuclear option has blown up in his face.
The bottom line of this entire affair is that we upheld our long history of checks and balances against absolute power and we held onto our right to block George Bush’s nominees to the Supreme Court. Seven Republican senators have agreed to oppose any future attempts to trigger the nuclear option.
Besides, when Bill Frist tries to pull these kinds of shenanigans around a Supreme Court nominee, he’ll look even more desperate and further out of the mainstream than he does now.
Bill Frist lost today. He lost his hold on his right wing base and he lost his hold on Senate Republicans. That sounds like a pretty good deal to me.
: So they’re saying Frist lost, right? Wish they had emphasized that point, just to be sure.
L. Graham From Last Night
I think we forgot to comment on this, which Hugh Hewitt does today: “Lindsey Graham’s short speech about ‘we are at war, and kids are dying,’ was a low, low point for him. ” That it was. It reminded me of Glenn Reynolds war line vis-a-vis the recently passed abortion-transport bill. Except Reynolds’s isn’t a United States senator.
Jon Adler just called–heard L. Graham on a radio show say that renominating Estrada would not constitute an “extraordinary circumstance.” Also, Graham (a.ka. MIT) still believes he still retains the right to invoke the nuclear option on one of the seven if Dems filibuster and its not an “extraordinary circumstance.”
Some folks appear to be of the view that Republican signatories are obligated to accept the legitimacy of any determination by a Democrat signatory that “extraordinary circumstances” exist. I have no intention of defending the anti-cloture reform agreement, but I believe that it says exactly the opposite. The provision that states that “each signatory must use his or her own discretion and judgment in determining whether such circumstances exist” means that a Republican signatory is fully entitled to determine that “extraordinary circumstances” do not exist and that a Democrat signatory’s contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory’s determination of “extraordinary circumstances.”
A Religious Coalition for Reproductive Choice e-mail that just went out:
In the deal ending the Senate showdown over changing the filibuster rule, Democrats agreed to forego the filibuster on three of President Bush’s most extreme nominees–Priscilla Owen, Janice Rogers Brown, and William Pryor. The Religious Coalition for Reproductive Choice will continue to vigorously oppose all three as unsuitable for lifetime judicial appointments and urges you to tell your Senators to vote against their confirmation.
The compromise forged by a bipartisan group of 14 Senators does two things: it shelves the Republican threat to eliminate the filibuster for judicial nominees and leaves open the possibility that the filibuster can be used in “extraordinary” circumstances.
The question now: if the Bush Administration nominates an anti-choice ideologue for the U.S. Supreme Court, will protecting women’s rights and lives be considered “extraordinary?”
As people of faith, we must make it clear that judges who oppose reproductive rights and want to impose their own religious views are unacceptable.
Re: The Filibuster
I think Mark and I are talking past each other. I don’t think many conservatives maintain that the filibuster is useful as a tool to block judges. Rather, I think many conservatives believe that the filibuster is a useful legislative tool insofar as it allows conservatives to block the growth of government. The connection is that many conservatives rightly feared the proposed rule change for judicial nominations would lead to the complete elimination of the filibuster for all purposes the next time conservatives sought to block a liberal initiative. That is, getting rid of it where it is improper would lead to getting rid of it where it is proper and useful.
SCOTUS Love Affair with International Law, Cont’d
INDIANAPOLIS – Allowing U.S. courts to consider the views of other judges — including international jurists — while making a decision is a responsible practice, Supreme Court Justice John Paul Stevens said during a speech Monday.
My comment related to filibustering judicial nominees, but I am not persuaded that even the legislative filibuster is a great tool for limiting government. I can think of numerous examples where the opposite would be true, such as a minority blocking tax cuts or the elimination of programs. So far, I’ve not seen the evidence but am certainly willing to consider it. And it seems to me it is for those who argue the benefit of the filibuster, and its value to conservatives, to explain why it’s such a benefit when it has never been triggered. If there have never been enough conservative senators in the Senate to use it against judicial nominees, or if there have never been enough conservative senators who think it should be used to block judicial nominees, then what’s the benefit? Which is my point.
The Filibuster as a Tool
Mark comments that “if the filibuster is such an important conservative tool, it’s remarkable that conservatives have never used it to block activist judicial nominees.” But this would only be “remarkable” if a) there were enough conservatives (as opposed to Republicans) in the Senate to filibuster a judicial nominee and b) if conservatives thought it was ever advisable to filibuster a judicial nominee. One could well believe, as I do, that the filibuster is an important tool for slowing or blocking unwise legislation, but it is nonetheless always inappropriate when used to block confirmation of judicial or executive branch nominees.
I don’t know if Professor Bainbridge is usually conservative as I admitted don’t know him and don’t regularly read his postings, but his posting on the filibuster deal isn’t all that different from what we’ve heard for months now. George Will made many similar arguments, which I addressed several weeks ago. I would add that if the filibuster is such an important conservative tool, it’s remarkable that conservatives have never used it to block activist judicial nominees.