Adam White and Kevin White have responded to the arguments raised by Mark and me (our NRO article is here). (Jon and Ramesh have also weighed in.) I’m a little jammed at the moment, but I may have more to say about the Whites’ response in the coming days, time permitting. I do want to note, however, an error that I introduced into our NRO article, which Adam and Kevin also note below. I mentioned Jim Haynes (the Pentagon’s General Counsel) as one of the two nominees whose nomination was killed by the Gang of 14 deals. In fact, it wasn’t Jim’s nomination but William Myers’ that I meant. Haynes was left in limbo by the Gang of 14, and, as both Mark, the Whites, Ed Whelan at NRO’s Bench memos and Paul Mirengoff at Powerline have noted, his nomination languished thereafter thanks to Senators McCain and Graham. Unfortunately, Jim withdrew his name from consideration at the end of 2006.
Here is the response from Adam and Kevin:
When we wrote our Daily Standard essay, we hoped to spark debate on McCain’s record on judicial nominations, specifically with respect to the Gang of 14 (“G14″). Seeing your NRO essay (and a good amount of blog chatter), we see we’ve accomplished that goal. We offer just a few thoughts on your response: 1. Post-G14 Filibusters: According to our research, and contrary to your assertions, no post-G14 judicial nominations have been filibustered under the G14 agreement’s “extraordinary circumstances” clause:
– Neither William Myers (whose name we accidentally replaced with William Haynes in our essay) nor Henry Saad were filibustered under that clause. It applies only to “future nominations,” so it did not applied to their nominations then pending. Neither Saad nor Myers was the subject of a failed cloture vote ( i.e., filibustered) after they were subsequently re-nominated. – Similarly, William Haynes (who was not mentioned in the G14 deal) was not filibustered; his nomination has languished in the Senate Judiciary Committee under Lindsey Graham’s ”hold.” – As for Terrence Boyle (who, we presume, was the fourth of your four “filibustered” nominations), Sen. Frist never scheduled a floor vote (or cloture vote) after his nomination left the Committee, and since his 2006 re-nomination he has not escaped the Committee.
2. Frist’s Role In The G14: There’s nothing implausible about our chronology (in fact, our account is based on news reports. Frist may have thought the nuclear option was a winner when he first proposed it and when he rejected Reid’s deal, but by the end, when he reportedly encouraged Graham/DeWine to hammer out a deal, it was obvious that Frist didn’t have the votes to win. Or, to take a slightly more cynical view of Frist’s role, he may have paid lip service to the nuclear option, to shore up conservative support for his Presidential aspirations, while simultaneously taking a more prudential path behind the scenes. (Frist was, you must remember, a politician.) You two dismiss both of these possibilities out of hand, without explanation.3. Roberts and Alito: You suggest that the G14 deal did nothing to help the Roberts & Alito confirmations. We respectfully disagree: Had the Democrats succeeded in killing the nuclear option in an up-or-down floor vote, they would have asserted themselves much more aggressively on the Supreme Court nominations. Without the protections of the G14 deal, we believe that President Bush would have thought twice before nominating the controversial Alito to the second of two simultaneous vacancies. Instead, he likely would have picked a much less controversial, more-favorable-to-Democrats nominee like Alberto Gonzales (prior to DOJ scandals, of course) or Orrin Hatch. In short: You think that absent the G14 deal, Roberts and Alito would have been nominated and confirmed. We think that absent the G14 deal, Alito probably wouldn’t have been nominated at all. (Roberts, though, surely would have succeeded.) 4. “Advice and Consent”: Simply put, the Constitution nowhere requires an up-or-down vote on judicial nominations. (Aren’t we supposed to be skeptical of reliance on unwritten constitutional provisions? ) As one of us wrote in the Harvard Journal of Law & Public Policy a couple of years ago, Hamilton’s arguments on this subject in The Federalist bear less resemblance to the Framer’s debate on the subject (a debate that Hamilton missed while he was in New York) than to Hamilton’s own proposal, which was rejected by the Framers. The Framers modeled “Advice and Consent” on Massachusetts’s system, which never involved recorded up-or-down votes on failed nominations. As explained in that JLPP article, the Massachusetts Council conducted “advice and consent” by officially approving acceptable candidates and by remaining silent on unacceptable ones. Since the very first beginning of our Republic, when the first Senate rejected President Washington’s nomination of Benjamin Fishbourne for a naval officer position in Georgia, and drove President Washington to nominate the Georgia Senators’ preferred candidate, pre-nomination consultation between the President and the Senate has been a rule more than an exception. Whether or not McCain and the G14 erred in saying that the Constitution’s “advice and consent” *requires* pre-nomination consultation (we agree with you that it does not), you’re completely at odds with 200 years of history if you suggest that Presidential consultation with the Senate prior to nominations is not a deeply-rooted practice under our Constitution. 5. Accountability: You complain that the G14 deal saved Democrats and others from “accountability” of voting for and against judges. We don’t see how the 100 Senators were any more or less accountable under the deal. Can you name a single Senator who was saved from “accountability”? The scorn you levy against McCain, Graham, and the rest of the G14 (and, of course, the non-G14 Democrats) undercuts your own theory that they were somehow “unaccountable.” In any event, it’s hard to imagine how such “accountability” would have played out in 2006. The GOP was destined for catastrophic defeat at the polls, given the GOP’s record on spending, sex/money scandals, Iraq, Katrina, and “incompetence” generally. You strain credulity to suggest that a few filibustered lower-court nominations would have changed that (or to suggest that President Bush would have left one or two Supreme Court seats unfilled from 2005 through 2006, while a filibuster fight continued). Again, as a general matter, you seem to begrudge McCain for achieving actual marginal victory (Pryor, Brown, Kavanaugh) over principled defeat. We disagree: as we noted in our essay, McCain’s compromise win is directly consistent with Buckley’s and Burnham’s call to support “the most conservative electable candidate” (or, in this case, “the most conservative achievable outcome). Your absolutist position on the subject, by contrast, is directly at odds with the pragmatic Buckley/Burnham conservatism at National Review’s roots.