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.
They argue:
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.”
Now follow this: four of the nominees (Haynes, Saad and two others) (a) had been filibustered before the deal and (b) were not given an up-or-down vote by the deal. Ergo, the deal kept those filibusters going. It did so, moreover, without anything approaching extraordinary circumstances — even as Sen. McCain and his accomplices claimed there would be no further filibustering absent such circumstances. And, as the Whites further confusingly acknowledge, the nominations of Haynes and Saad were “effectively kill[ed]”; that is, though the Whites say the Gang of 14 agreed those nominees’ “fates would not be decided by the agreement,” their fates were precisely decided by the agreement. Further, to the extent there might have been some wiggle room around the agreement, Haynes is to this day being blocked by McCain. So, though the deal he spearheaded may represent “straight talk” to Sen. McCain, it’s unlikely the nominees — or many other people — would see it that way.
It is pure post hoc ergo propter hoc for the Whites to contend that the Gang of 14 deal had anything to do with the confirmations of Chief Justice Roberts and Justice Alito. Supreme Court appointments are of a different dimension than nominations to the lower federal courts, even the Circuit Courts of Appeal. The public is far more engaged in them, and the political price of obstructionism is certain to be markedly higher.
As exhibited during their hearings, these two jurists were so patently qualified, it would have been suicidal for Democrats to try to block them by filibuster. They waved the flag for the base by asking nasty questions, raising inane objections, and casting futile votes against confirmation, but there was no way they were going to block a vote. The filibuster strategy, preserved by word and deed in the Gang of 14 deal, has been highly effective in thwarting qualified nominees, but it depends on public apathy. If it had been used it against Roberts and Alito, that would have called great attention to its use against Court of Appeals nominees, which might have cost Democrats dearly. That and the undeniable merit of the two justices involved, not the Gang of 14 deal, is why the high-court nominees were confirmed.
Finally, one other aspect of the Gang of 14 deal warrants attention. Reading the Appointments Clause, Sen. McCain and the other signatories declared: “We believe that, under Article II, Section 2, of the United States Constitution, the word ‘Advice’ speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations.”
Perhaps the senator actually believes that. After all, he is the same John McCain who, in 2000, said it would be important to consult with Senator John Kerry, among others, “to get foreign policy, national security issues back on track.” But if he does believe it, he is looking at a different Constitution. The structure of the Constitution, the plain language of the Appointments Clause, and Alexander Hamilton’s discussion in The Federalist Papers of the Senate’s contemplated advisory role all indicate that the prerogative to nominate belongs to the president alone. Article II, Section 2 does not speak to Senate consultation about nominations at all.
The Whites insist that “McCain is a proponent of ‘strict constructionist’ judges such as Antonin Scalia.” Maybe … but if the senator believes, as he has represented, that he is constitutionally bound to consult with today’s Senate Democrats before nominating judges, we won’t be seeing another like Justice Scalia during a McCain administration. At a minimum, the assertions in the Gang of 14 deal underscore the need to examine Senator McCain’s approach to the selection of judges — a matter that has gotten virtually no scrutiny in the ongoing campaign.
— Andrew C. McCarthy is an NRO contributor. The views expressed above are his own and do not necessarily reflect the views of any candidate or organization. Mark R. Levin served as chief of staff to Attorney General Edwin Meese in the Reagan administration, and he is a nationally syndicated radio talk show host.
Editor’s note: This is a correction to the above article.