Republicans Get Whipped Again
By Ryan Walsh (05/30/05)
Just when it seemed the Senate Republicans had finally garnered the votes to pull the trigger on the “nuclear option,” their solidarity splintered. A group of seven Republicans and seven Democrats, led by “maverick” senator and media-darling John McCain, abandoned the “extremism” of their respective parties and moved to stake out a middle ground on filibusters, a compromise around which the entire nation could gather and breathe a collective sigh of relief.
So what happened? Did these 14 men and women of nonpartisan courage and conscience really “save our Republic,” in the words of Senator Robert Byrd? Hardly.
According to the deal, the Republicans will forswear the nuclear option so long as the Democrats agree to reserve the judicial filibuster for “extraordinary circumstances” only. In the short term, this means that three of Bush’s appellate court nominees will go to the Senate floor for approval, a small win for the President and Republicans. Yet in the long term, the deal grants Democrats the implicit ability to define subjectively what extraordinary circumstances really are. With all the semantic wiggle-room in the world, Democrats are now free to play by their own terms. We might find out in the coming months that any judge to the right of Ruth Bader Ginsburg is “out of the mainstream” and therefore “extraordinary.”
So the Republicans got three appellate court judges, while the Democrats maintained the right to filibuster any conservative nominee to the Supreme Court. Considering that this whole judicial filibuster controversy has centered on the Supreme Court from day one, it’s safe to say this compromise dealt the Republican caucus a hard-left blow to the jaw. The GOP will be reeling from this one for months.
Not only have the Republicans tied their hands in a future battle for the Supreme Court, but they’ve also forfeited their primary argument, i.e., that every judicial nominee deserves the consideration of the whole Senate and an up-or-down vote, consistent with the “Advise and Consent” clause. Most people understand the value of compromise, and in politics there is sometimes a time for finding middle ground. But one finds in the greatest policy questions, issues, and debates of our time that the best answer is often a “yes” or “no,” a true or false. Thus, there must be a winner and a loser. Sure, the discourse can become passionate and divisive, maybe sometimes even downright mean, but that’s politics.
Compromising the Constitution has never been an option for the U.S. Senate. If the seven Republicans in the “group of 14” had believed that the judicial filibuster was unconstitutional, there is no excuse for compromising that principle.
The stubborn facts remain. Until the last four years, a minority of senators had never filibustered a judicial nominee who enjoyed majority support. Democrats claim that the filibuster is deeply rooted in the traditions of the Senate and the Constitution, but the framers beg to differ. As professor of constitutional law Douglas W. Kmiec writes, “The framers specifically considered and rejected in the 1787 convention a 2/3ds Senate concurrence for judicial appointments.” To be sure, Federalist Paper #77 further emphasized the importance of “submitting each nomination to the judgment of the entire branch of the legislature” (emphasis mine).
As long as Republicans allow the Democrats to define the terms of debate on judges as well as on Social Security, personal accounts, John Bolton, and other issues, the GOP will continue to suffer setbacks.
It’s time the GOP start acting like the majority party.
(Printer friendly version) Email: Ryan Walsh
