Breakthrough Pact Unlikely To End Battle

Dan Balz argues, correctly I believe, that last night’s capitulation by the Republicans on judicial nominees wil not solve the problem in the longer term.

Breakthrough Pact Unlikely To End Battle (WaPo, A1)

The deal brings mixed results for President Bush. It means that at least three of the nominees who have been blocked for years will make it to the appellate courts, while at least two will not. Beyond that, without a total ban on judicial filibusters, as the nuclear option would have guaranteed, the president will not have such a free hand in selecting a Supreme Court nominee. He also will be under pressure from the moderates to work more cooperatively with the Senate on judicial nominations or face rebellion from at least some of them.

For that reason, the fragile compromise, stitched together in the office of Sen. John McCain (R-Ariz.) just as the Senate began an all-night session, will not necessarily end the battle over the future shape of the judiciary. At best, the group produced a cease-fire in the judicial wars that will deal with nominees who long have been in the confirmation pipeline.

After that, no one can say with certainty whether the deal will stick, particularly if there is a Supreme Court nomination in the near future, as many anticipate. The 14 senators who joined hands last night said theirs is an agreement based on faith and goodwill, but there is no certainty or even commitment that they will continue to operate as a group once past the current nominees in question. “I think they did what the Senate very often does,” said Ross K. Baker, a professor of political science at Rutgers University and a longtime student of the Senate. “They kicked the can down the road. They basically postponed a crisis and set up the predicate for another one in the future on the Supreme Court nomination.”

The “compromise”–which is a strange term for a solution wherein the Democrats get most of what they want while the Republicans get only part of what they would have gotten without the deal–basically takes us to the status quo ante-Bork. If the Democrats truly only filibuster the most ideologically objectionable nominees, then this is not a bad deal. But, since the Democrats are the ones who will decide when “extraordinary circumstances” exist, we’ll likely wind up back to where we are now quite soon.

Let’s remember that Antonin Scalia, whose judicial philosophy was quite well documented, was confirmed 98-0. It strikes me as exceedingly unlikely that the Democrats would let a Scalia-type–or even Scalia himself–have an up or down vote if he is nominated for Chief Justice once William Rehnquist retires. At that point, they will declare the circumstances “extraordinary” and threaten a filibuster. Will the Republicans then feel bound by this agreement not to change the rules during the 109th Congress?

Further, agreeing to this “compromise” weakens the Republicans’ hand in the longer run. If the Democrats fail to honor the spirit of this agreement–and they surely will–the GOP will have a much harder time falling back on the “up or down vote” argument. They’ve demonstrated rather clearly that they were not fighting for a principle but rather seeking to achieve a specific political outcome. It’s going to be rather difficult to go back.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Lurking Observer says:

    Status quo ante Bork?

    Prior to Bork, my impression was that ideology was not sufficient grounds to oppose a nominee, even for SCOTUS. Rather, it was usually ethical problems, qualifications (wasn’t it Nixon who nominated a mediocrity?), or somesuch challenge.

    Bork, iirc, was considered eminently qualified but ideologically unacceptable.

    The problem with this situation, then, is whether there is such a thing as ideologically unacceptabe for SCOTUS, even if s/he is eminently qualified as a legal scholar?

    More to the point is whether such ideological opposition should be sufficient to stop a nominee when the opponents are in the minority.

    I’ve not been a big supporter of the “nuclear option,” but it seems to me that this situation was the worst of all worlds. Better for the GOP to have denied the “right” to filibuster, but choosing to leave it in the procedural tool-box for possible future use, than this “compromise.”

  2. legion says:

    Well, the whole argument that the dems are preventing candidates based on a religious or political litmus test is pure crap (or at least moot), since not even the GOP would likely deny that Bush’s candidates themselves are being chosen through an ideological filter…

    But yeah, this ‘compromise’ is bogus. Both sides basically agreed to put their dicks back in their pants & measure them later.

  3. McGehee says:

    …not even the GOP would likely deny that Bush’s candidates themselves are being chosen through an ideological filter…

    And that would be…?

    Remember, Legion: it’s the Democrat presidential candidates who are always promising overtly that anybody they put on the federal bench will be 100% reliably pro-Roe v. Wade.

    Yet somehow it’s always alleged that Republicans are the ones with the abortion litmus test.

    Which is, to borrow your own descriptor, pure crap.

  4. legion says:

    Well, McG, I think Arlen Spector would disagree with your evaluation. He had his testicles neatly clipped not too long ago for not being sufficiently rabidliy anti-choice. And if you were to ask Rev. Dobson (or Sen Frist, or any ‘official’ GOP spokesman), I believe he would very clearly state that any GOP candidates for the bench will be reliable 100% anti-choice.

    I’m not saying the dems _don’t_ have a litmus test, but for the repubs to point the finger and claim innocence and ideological neutrality is, I reiterate, _pure crap_.