Everyone in the Senate is, of course, spinning, but the ability of the Democrats to filibuster judicial nominees hasn’t been definitively broken. They regard themselves as the winners: "We have sent President George Bush, Vice President Dick Cheney and the radical right of the Republican party an undeniable message ... the abuse of power will not be tolerated."
If I were doing the spinning on the Republican side, here’s some of what I’d say. Democratic happiness over this deal gives the lie to the rhetoric of extremism they have used to smear three worthy nominees--Priscilla Owen, William Pryor, and Janice Rogers Brown--and which they will of course use to smear others. Their principal goal all along has been simply obstructionist, not a matter of principle. Since their charges of extremism were in this case so lightly abandoned, no one ought to take them seriously again. Let’s portray the Democrats as they are: not principled defenders of judicial activism (a position we’d love to debate and put in its place), but opportunistic and unprincipled partisans, willing to go to any lengths to stymie a President, for whose person and office their contempt knows no bounds. We have for the moment preserved the forms, but not the substance, of Senate procedure. We will hold the Democrats to their side of the agreement, which we think will take some doing, given their record. And we will continue to remind them of the "flexibility" they displayed today regarding their judgments of judicial extremism. If a judge like Janice Rogers Brown, someone who allegedly would have taken us back to the 19th century, deserves an up-or-down vote, so does any conceivable Supreme Court nominee.
This doesn’t quite make a silk purse out of this sow’s ear, but I might be able to sleep soundly tonight.
Update: This response is troubling:
Nancy Keenan, president of NARAL Pro-Choice America, said her group was "heartened that the crisis has been averted and the right to filibuster preserved for upcoming Supreme Court nominations. We are confident that a Supreme Court nominee who won’t even state a position on Roe v. Wade is the kind of ’extraordinary circumstance’ this deal envisions."
If she’s right, then the appearance of being had will be replaced by the reality of being had. One can only hope, probably in vain, that the Republican signatories of this deal will rejoin their party, should even one of their Democratic counterparts contemplate filibustering a Supreme Court nominee.
I note also in response to Fung (comment # 12 below) that had the filibuster been as "normal" and "traditional" (my words, not his) a response to judicial nominations as he claims, Clarence Thomas would surely have been filibustered. The willingness of his vitriolic and underhanded opponents to accept a narrow defeat, when they appeared to be willing to go to any length to stop his nomination, points to the extraordinariness and unprecedentedness of the current Democratic tactic.
I also note that there are two "advice and consent" clauses in the
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors....The treaty-making power is "seamless," with the implication that the Senate’s advice and consent be sought throughout (which is perhaps as it should be since treaties function somewhat as laws). But the President shall nominate and then seek the advice and consent of the Senate in the appointment, which is also as it should be, since nomination is by and large an executive function. Treaty-making is a shared executive and legislative function; appointment is an essentially executive function, qualified by Senate participation. The agreement crafted by the fourteen "moderates" seems to overlook this constitutional distinction.