I’m already receiving middle-of-the-night e-mails condemning my position (and some praising it) in favor of the avert-the-filibuster deal. The major point I couldn’t get to because the baby was crying is this: Despite the language in the deal about how the Republicans won’t bring up the nuclear option until 2007, there’s other language in the deal that clearly gives the Republican signatories the option to pull out of the deal should Democrats misbehave.
This deal is therefore effectively about the judges it mentions — and about them only. Every future nomination will be decided as follows. If the Democrats insist that the next nominee(s) are bad enough to invoke the “extraordinary” right to filibuster, the Republicans have the right to say the Democrats are full of it, kill the deal and go to the nuclear option immediately.
Thus, the agreement is only binding to the extent that Democrats do not filibuster — since it will be very difficult for the Senate Republicans to allow them to get away with the “extraordinary” right claim about a mainstream conservative nominee.
To my mind, that’s the true essence of the political deal here. Every time the Democrats who signed it move toward filibuster, the Republicans move toward busting the deal.
And that’s basically what Mike DeWine of Ohio, one of the GOP signatories, said last night to the Washington Post: “Republicans said they are free to back a ban if they believe Democrats act in bad faith and filibuster a nominee whose credentials do not amount to an ‘extraordinary’ circumstance. ‘We don’t think we’re going to get there,’ said Sen. Mike DeWine (R-Ohio), adding that he will not hesitate to vote to ban judicial filibusters if he concludes the Democrats are abusing the right.”