ConfirmThem

By DanCT Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

The most realistic approach to a compromise is the one that has been getting the most coverage:

Democrats would pledge not to filibuster upcoming nominees except in "extraordinary circumstances." Republicans would not vote for changes in the filibuster rules, except if, in their view, Democrats at some point violate the spirit of the agreement.

There are two big problems with such a deal. First, it is obviously only a temporary fix and doesn't address the underlying issue of the inappropriateness of filibustering nominees. As soon as the mix of Senators changes or even one of the signators defects, the deal falls apart. The second is that after Democrats called Scalia, Thomas, Rehnquist, Owen, and Brown "extreme", GOPers are hesitant to trust the Democrats' judgment about what constitutes "extraordinary circumstances." According to Ben Nelson (D-NE), trust building been the focus of the discussions:

Sen. Ben Nelson (D-Neb.), who has played a major role in seeking a compromise, said that much effort in the last few days had been spent on building trust among the group. "Every time we've gotten together, we've increased that trust, that mutual respect and the desire to work together," Nelson said after one session.

And how close are they getting to a deal?

"Getting close," said Sen. Ben Nelson

And:

We're as optimistic as we've ever been, but we're not quite there yet," said Sen. Mark Pryor (D-Ark.).

A different picture is painted by Susan Collins (R-ME):

We're making progress, but we're making progress by inches, rather than by miles," said Maine Republican Susan Collins, adding, "We need to get everyone to a certain comfort level."

It sounds like Collins is wary, but she leaves open the possibility that she could be convinced. Hagel, on the other hand, isn't about to be lured into a deal that allows blockage of any nominees.

Ben Nelson (D-NE) appeared on Hardball with Chris Matthews last night and didn't do very much to inspire trust. An exchange:

MATTHEWS: Do you mean there‘s a possibility you would declare Judge Scalia an extraordinary case and vote against cloture [if he were nominated for Chief Justice]?

NELSON: Probably not. But I haven‘t vetted him. I haven‘t seen all the papers....I haven‘t looked at every one of his decisions.

Probably not? If even the famously moderate Ben Nelson accepts the premise that there is nothing wrong with filibustering judicial nominees for ideological reasons, there will be no deal. We see Democrats one day strongly denounce the principle of filibustering of nominees, and a short time later they warmly embrace the filibusters they so recently denounced. How can they defend their turnabout? [paraphrase] "These are extraordinary circumstances. Justice Owen is outside the mainstream. Justice Pryor has strongly held beliefs." If PFAW and NARAL can convince 40+ Senate Democrats that Justices Owen and Pryor are "extreme", they will be able to convince moderate Democrat Senators that Scalia or any other conservative judge that gets nominated to a circuit court or the Supreme Court is also extreme. To build the kind of trust that moderates like Susan Collins and Chuck Hagel are looking for will require a stronger committment to the principle that there's something unsavory about filibustering nominees for any reason, let alone ideology.

The interview continued:

MATTHEWS: No, I know, I‘m only asking the ones who sit on the court now, because I do want to know what extraordinary means. And I question, I guess I think it may be an escape hatch for some people, maybe not one of your six, to vote against anybody.

NELSON: Well, I‘ll put it this way. When I couldn‘t get a file that I wanted, the material that was available but would not be made available to me in the case of one of the judges, I voted against cloture. The one time I did. Because I thought it was extraordinary. I decided, if I can‘t get the information, if I can‘t make up my mind, how can I decide up or down on that judge?

That was the rationale for blocking Miguel Estrada--that he didn't release confidential memos from his years in solicitor generals' offices:

They should remember that the reason Democrats gave for blocking Estrada's nomination was that the White House would not release memos Estrada wrote while working for both Republican and Democratic solicitors general. Those memos...are legally protected from disclosure, and every living solicitor, of both parties, condemned the Democrats' request.

If even Ben Nelson leaves open the door for blocking nominees like Miguel Estrada for not releasing confidential memos of a kind that have never been released by any nominee, there will be no deal.

Such a deal, though, is plausible, unlike the deal the Byrd and Warner have reportedly been discussing:

The issue at the forefront of current negotiations is a proposal championed by Byrd and Sen. John W. Warner (R-Va.) to create an independent, bipartisan commission — under the auspices of the Senate Judiciary Committee — that would pick a nonbinding pool of nominees to propose to the president to fill any Supreme Court vacancies.

This is a non-starter because it would require Senate leadership AND the President to go along with it. It's not going to happen. By contrast, the maverick deal being discussed by Nelson, McCain, Collins, etc. is plausible because individual Senators have the power to vote as they see fit. For example, if five Democrats decide that filibustering nominees is wrong, they can simply vote for cloture even if Harry Reid doesn't like it. Or if 6 Republicans decide that filibustering is a legitimate tactic to use against nominees, they can vote against the "nuclear option" even if Bill Frist doesn't like it.