ConfirmThem

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

Can we count Senator McCain as a "yes" vote on the Byrd option in the future? I wouldn't count him out. Sean Hannity had an interesting exchange with the Senator on Hannity & Colmes last week:

HANNITY: If there's a nominee like a Miguel Estrada, if there is a nominee like a Robert Bork or a Scalia or a Thomas, and the Democrats say that's an extraordinary circumstance, will you then join with Bill Frist and go forward with that option, because you feel that they will have broken the agreement?

MCCAIN: I will — I can't name those names because I never examined any of them that carefully although Estrada clearly was qualified. But if we make a judgment that these nominees are extraordinarily unqualified, we'll agree with them. But if they're not, then we will — we will go ahead and go forward.

McCain defines "extraordinary" in terms of qualifications rather than ideology. If the Democrats filibuster for ideological reasons, then McCain is prepared to "go forward" with the Byrd option -- and with a Miguel Estrada-type nomination in particular.

Hannity pressed him further on the deal, which looks absurd in the eyes of many conservatives:

HANNITY: But if the Democrats — if this is the first time they did it, didn't they get a reward for this? And what guarantee is there they won't do it in the future?

MCCAIN: If they do it in the future, the agreement we had will be null and void. We've made an agreement that they will only filibuster under, quote, "extraordinary circumstances."

HANNITY: Does that mean that a conservative is appointed? Is that "extraordinary"?

MCCAIN: No, it does not. That will be our judgment, not — as well as theirs.

McCain echos the interpretation we heard from Graham and DeWine (and Whelan), viz. that if the Democrats filibuster in circumstances that the GOPers do not agree is "extraordinary", then the deal is off. McCain then almost tells us what will happen with the deal:

Look, this was based on trust. That's the way the Senate works. We have to work that way. And I'm confident — listen, I can't tell you. A number of my colleagues came up to me today and say, "Thank you. We need to now go about the business of the Senate."

Multiple choice. How did McCain intend to finish the sentence?
A. "I'm confident [that there will be no more filibusters]"?
B. "I'm confident [that if there are filibusters, Frist will have the votes for the Byrd option]"?
C. "I'm confident [that the President will send us 'moderates' whom the Democrats won't want to filibuster]"?
D. "I'm confident [that the 7 Republicans will nod and say 'yes' when the Democrats say 'extraordinary']"?
E. "I'm confident [that after we agreed to torpedo Myers, Saad, Haynes, and Kavanaugh, the Democrats won't filibuster very many more nominees]"?

A little speculation...I don't think there's any question that "A" is what he meant to say. Why would he then pull back? Because such a statement would arose the fury of the left. He wants the fury to be disspated into a series of small brush fires that flame briefly as each nominee is voted on in series. Ambiguity and muddleness is key. One of the defining characteristics of moderates is that they like to avoid conflict by refusing to make clear decisions, by compromising, and by postponing outbreaks of discord. If no one is certain what the deal really means, the fury on both the right and left will defuse (temporarily). The fury has been notably stronger in the right so far, and McCain is trying to deflect that fury -- but not so much as to arouse it strongly in the left! This is his game, and he is good at it (even though he blundered in the Chris Matthews interview a month or so ago when he said he'd vote against the Byrd option).

At that particular point in the interview, he was able to hold back, but at other points he just couldn't:

...now you watch. We're going to confirm these judges. There's not going to be a filibuster of a Supreme Court judge.

It sounds good, Mr. McCain. But how can we have any confidence?

He later elaborates (slightly) on his view:

HANNITY: But Rehnquist, Scalia, Thomas, those are all qualified people who should not be filibustered? People like them.

MCCAIN: I don't think these seven — remember, I didn't make the agreement with 45 Republicans — Democrats. We made it with seven Democrats. I'm confident that these seven Democrats would — would not filibuster those individuals.

This is interesting because those three have already been defined by many on the left as "extreme", and the other 38 Democrats seem to be on board. McCain, though, seems to think these 7 Democrats do not think it is right to filibuster for ideological reasons and were looking for a way to break with their leadership to bring a measure of sanity back to the confirmation process. The far left has made tremendous progress in hijacking the process in recent years, from first establishing the primacy of ideology as a consideration for confirming or rejecting Supreme Court nominations (Bork, Thomas), then to establishing the primacy of ideology for Circuit Court nominations, then by asserting a minority's "right" to reject a nominee for ideological reasons. McCain apparently believes the 7 Democrats agree that the minority has pushed it a tad too far and are looking for a way to move forward with the confirmation votes.

HANNITY: The Democrats for the first time in history did this, and people feel you emboldened them by this deal. What do you say to them?

MCCAIN: Well, first of all, they did abuse the process badly, because they blocked the nominees that the president had for judgeships. We've now got an agreement where they are moving forward. You watch what we do.

We certainly will be watching, Senator, and we expect you to stand by your words to "go forward" with the Byrd option if a candidate like Estrada is nominated. This deal sounds terrible because it establishes the filibustering of nominees as legitimate and it advocates an extra-constitutional injecting of Senate politics into the nominations phase rather than containing such poison to the confirmation phase. I'm skeptical...

MCCAIN: "[O.K., Dan]... watch what happens here in the next few months before [you] make a judgment."

DAN: "Thank-you, Senator McCain. I'll be watching, and I hope you are right."