I am underwhelmed by the rebuttal of Adam and Kevin White, some of which is only marginally relevant, and some of which is strawman stuff. To take it point by point, in the order the Whites raised them:
1. The contention that the deal was beneficial because no one since has been filibustered on “extraordinary circumstances” grounds is misleading, precisely because it buys into the Gang of 14 (G14) deal, which was itself an exercise in legerdemain. We argued that the G14 deal actually sustained ongoing filibusters. Adam and Kevin say you can’t blame the G14 for that, pointing to the phony-baloney G14 “future nominations” proviso. Big deal. Sen. McCain and his G14 partners trumpeted that they had ended filibusters in the absence of “extraordinary circumstances”; but in fact they knowingly allowed filibusters to continue in the absence of extraordinary circumstances.
Moreover, at the end of 2006, President Bush announced that he would re-nominate Haynes, Myers and Boyle. Those would have been new nominations, not pending ones. The Democrats protested and the White House backed down. Now, you want to tell yourself that there was technically no new nomination and thus there was technically no filibuster, fine. But in the real world, these nominees were blocked in the absence of any extraordinary circumstances long after the G14 deal — and the filibusters killed their nominations. And Haynes’ nomination was blocked by McCain and Graham. (The Whites somehow think there is a meaningful difference between an announced “filibuster” versus a “hold” which, just like a filibuster, allows a minority [of one!] to prevent a full Senate vote.) Finally, the Democrats took over the Senate in 2007 and are now able to block nominees without filibustering. Crediting the G14 deal for preventing filibusters when they are now no longer necessary to block conservative judges is even less persuasive than crediting the G14 deal for the confirmation of Roberts and Alito.
2. I don’t know why the Whites go out of their way to give McCain the benefit of every doubt but get cynical when it comes to Frist. In any event, the Whites say Frist encouraged the G14 behind the scenes because he suddenly realized he didn’t have the votes. We think it was pretty obvious that Frist was in an uphill battle to get the votes from the start — the handwriting being on the wall long before he declined Harry Reid’s offer the week before the G14 deal — but pressed ahead until he was undermined by the G14. In the greater scheme of things, Frist’s role is one of the most insignificant aspects of this history, so I’d just agree to disagree.
3. The Whites’ argument about how the G14 deal is responsible for the Roberts and Alito confirmations is even less convincing on re-airing. Just as they omit mention of the Democrats’ senate takeover in crediting the G14 for preventing filibusters in the last year, they also neglect to recall the President’s Harriet Miers gaffe in crediting the G14 deal for the Alito nomination. Aside from Alito’s patent merit, the Right’s rebellion over Miers necessitated the nomination of Alito or someone very much like him. In any event, Mark and I argued in the piece why Supreme Court nominations are different and Ramesh makes the same point.
4. I doubt the Whites would disagree with the proposition that the President’s constitutional authority cannot be undercut by a statute. Yet they appear to believe it can be undercut by a mere Senate parliamentary rule. By their lights, a single senator could prevent a president from forming an administration. I don’t think so. The Constitution says the President is obliged to nominate; the Senate’s task is to consent or withhold consent. The filibuster rule prevents the latter duty from being executed. I don’t think this is a case of fabricating an extraconstitutional provision; it is a matter of enforcing the positive provision that is there.
The business about whether presidents may or do consult with the Senate before making nominations purports to respond to an argument we never made. We don’t deny that presidents may, and often have, consulted with senators before making nominations. Our point was that the G14 deal subscribed by McCain asserts that the president must engage in pre-nomination consultation — i.e., that this “requirement” is part of what is meant by the “advice” part of advice and consent. This is simply wrong, and the Whites concede as much.
5. The Whites misconstrue our accountability argument. As it happens, I do believe that senators should be accountable for up-or-down votes on all nominees. But that is not the accountability argument Mark and I made. What we said is that Frist was pushing the “nuclear option” (aka the “constitutional option”) which would have required every senator to be accountable on a vote that was a choice between preserving a senate privilege or requiring an up-or-down vote on every nominee.
The Whites, recall, argue that the G14 deal was a good one because Frist didn’t have the votes anyway. What Mark and I were saying is that there would have been value, even if the nuclear option had been defeated, in forcing all the senators, especially including the reluctant Republicans, to tell us whether they thought their privilege was more important than their constitutional obligation. Because of the weaselly G14 deal, the senators were spared having to be accountable for that choice — and because the filibusters, holds and slow-walks have continued to block votes, senators also continue to be effectively unaccountable for stopping the president from getting his nominees on the bench and impeding the Right from forcing Democrats to vote down qualified conservative judges, which is what would make the courts an effective campaign issue.