Strengthening Constitutional Self-Government

No Left Turns

Filibuster deal dead?

This article suggests that a number of the Democratic signatories have interpretations of "extraordinary circumstances" that include "extreme" ideology or "activism," both of which could be attached to any number of potential Bush nominees. Here are the relevant quotes:

"In my mind, extraordinary circumstances would include not only extraordinary personal behavior but also extraordinary ideological positions," said Sen. Joseph I. Lieberman (D-Conn.), a moderate the White House has been hoping to enlist to give bipartisan backing to the nominee.

Sen. Mary Landrieu (D-La.), one of the 14 who fashioned the agreement, said through a spokesman: "A nominee’s political ideology is only relevant if it has been shown to cloud their interpretation of the law. . . . A pattern of irresponsible judgment, where decisions are based on ideology rather than the law, could potentially be ’extraordinary.’ "

Sen. Ken Salazar (Colo.) rejected Republican assertions that he and other Democratic signers must accept a nominee as conservative as Janice Rogers Brown, now confirmed to a seat on the U.S. Court of Appeals for the District of Columbia Circuit, because the agreement allowed her confirmation. "It didn’t set a standard" for Supreme Court confirmations, Salazar said. "We would leave it up to each person to define what extraordinary circumstance means."

Sen. Ben Nelson (D-Neb.), however, said judicial activism concerns him more than ideology. "Are they going to be an activist?" Nelson asked rhetorically in discussing what might cause him to filibuster a Supreme Court nominee. "Their political philosophy may not bother me at all if they’re not going to be an activist."

That’s four of the seven Democratic compromisers who have signalled that they might abandon the deal. That leaves Robert Byrd, Daniel Inouye, and Mark Pryor as not yet on the record as potential waverers. Has anyone out there read or heard anything about their positions? Can at least three of the seven Republican signatories be counted on to support what seems to be the inevitable need to change the Senate rules? (Which ones? Chafee? Warner? McCain? Snowe? Collins? DeWine? Graham?)

The article also has extended quotations from Karl Rove, including a reference (unlikely merely a misstatement) to "Justice" Gonzalez. (To be clear, I take this as either a trial balloon or mindgames, rather than as a straightforward revelation of the direction of the Bush Administration’s thinking.)

For more, go
here.

Update: Mark Pryor never says never in this article:

A test case of the agreement is whether a nominee as conservative as Janice Rogers Brown, confirmed to the D.C. Circuit Court of Appeals, could get past a filibuster threat for the Supreme Court. Senator Pryor says it’s not clear. "Every nomination is different.... I would hope that Janice Rogers Brown would not ever be considered for the US Supreme Court. But I’d like to reserve judgment on that. I may be wrong about her. She may get on the D.C. circuit and be a wonderful surprise. I may change my mind on her over time. Let her have some time to develop there and show what sort of judge she may be," he said.

There’s also more from Ben Nelson:

"I’m leaving open my judgment as to what ’extraordinary circumstances’ involves," says Sen. Ben Nelson (D) of Nebraska. He says there will be "no surprises," and that members of the Gang of 14 have ongoing discussions on this point.

Stay tuned.

Discussions - 8 Comments

Events on the Democratic side of the Senate will come down to power politics. That is, the key question will be to what lengths the wealthy and potent leftist lobbies that care most intensely about Supreme Court appointments (NARAL, the ACLU, the Alliance for Justice, et al.) will go to make Senate Democrats dance to their tune and pull out all the stops--including a filibuster--to block Bush’s nominee.

Another key strategic question will be to what extent the Dem-left social issues lobbies will be able to get minority-group spokespeople to go along with this kind of "scorched-earth," obstruction-at-any-cost approach.

Drudgereport.com has an exclusive on this subject. Apparently Schumer thinks the deal doesn’t even apply at all.


The word "circumstances" can mean anything any of the seven Democrats -- who include left-wingers Daniel Inouye and Robert Byrd -- damned well want it to mean.

For this particular seat, "circumstances" can mean quite simply the fact that one of the two swing votes, O’Connor, is being replaced.

And this is indeed a "circumstance" of high stakes, which means it can easily be sold to undecided voters -- let alone the liberal media -- as "extraordinary."

I hope Bush nominates Robert Bork. The number of liberals who would have a myocardial infarction would certainly be impressive.

I hope the Republicans on the Judiciary Committee hurry to ask the question, "How would you have voted in Kelo vs New London?, while the hearing is on camera.

Any nominee who answers that question as a true conservative is going to create great problems for the liberals.

It’s time to parade the liberals as the enemies of the people that they really are.

Damned good idea, REG. We lose if we keep playing inside the "box" that the liberals have drawn for us.

The left knows it can’t win this one on ideology. Therefore it will try to win it with smears. W would be smart to have his people vet and interview a whole buncha qualified, interpretivist judges. That way, if the borkers get away with smearing one, W can put up a solid second choice, third choice, and so on if necessary. He retains the initiative. If he’s determined, the left can’t win, and will only succeed in making the Senate Democrats look like a lynch mob in the process. The prospect that among the nominees whom the Democrats will try to cover with mud and metaphorically strangle may be Hispanics, blacks, Jews, and women only heightens the long-term pain the Dems will be letting themselves in for.


Bush would get off to a better start if he didn’t make comments that appear to blame both sides equally for the incivility of the process. This is one thing I find hard to stomach about his leadership.

I don’t know why anyone would be surprised by any of this. The filibuster deal was simply a delay tactic to prevent consensus on "the nuclear option." Democrats aren’t going to let it get in the way of real business. The real question now is, does Frist have the guts and the votes to push through the nuclear option? I believe he’ll have to or else accept defeat.

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