Conservatives in a lather over Monday's Senate deal on judges might do well to remember Barry Goldwater. Appearing before the 1960 Republican convention and addressing right-wing delegates disenchanted with Vice President Nixon, the Arizona senator told his fellow conservatives to "grow up."
Conservatives who are riled up about the GOP Gang of Seven's "sell-out" or Senate Majority Leader Bill Frist's "failure of leadership" should grow up.
Yes, it's galling that two Bush appeals court nominees (William Myers and Henry Saad) can still be filibustered according to the bipartisan deal. It's disappointing that not all judicial nominees were guaranteed an up-or-down vote in the accord. It's a sound principle, and the "constitutional" or "nuclear" option would have settled this now and restored the status quo antebellum. Yes, it would have been swell to win it all utterly this week, but the Senate's a political institution, a place of deals and compromise. A deal was almost inevitable here. What's remarkable, really, is not the compromise; it's that the Senate came so close to going constitutional or nuclear.
But conservatives should take stock of all they've won in the deal and stop acting like losers. (Harry Reid, by contrast, was Monday's big loser, but he spent the night taking bows.) Three words: Owen, Pryor and Brown. All three Bush nominees that filibuster-happy Democrats went to war over—Priscilla Owen, William Pryor and Janice Rogers Brown—will soon be confirmed. Also, the deal's seven Democrats said they would back judicial filibusters only in "extraordinary circumstances."
Thus, the deal did two things. One, it delegitimized the judicial filibuster—the mechanism Reid's Democrats deployed in unprecedented fashion—except in extraordinary circumstances. The deal saved the principle of the judicial filibuster at the expense of its practice. Two, the deal established that the views of nominees such as Owen, Pryor and Brown do not constitute "extraordinary circumstances."
"Conservatives should not be overly upset because there's a real chance that the seven Democrats have redefined 'extraordinary circumstances' for the Senate ... " Sen. Gordon Smith said Wednesday. "If the deal holds, then we are back operating under the long tradition of Senate history, which is that you don't filibuster nominees to the judicial branch."
Will the deal's Democrats have a different view of extraordinary circumstances than its Republicans? Will Bush's appellate nominees not named in the deal, William Haynes II and Brett Kavanaugh, fall victim to the extraordinary-circumstances clause? Will extraordinary circumstances come to include a Supreme Court nomination? Perhaps, but then the deal comes apart. GOP "dealers" Lindsey Graham and Michael DeWine have already said they will vote for a rule change with Frist if their Democratic "dealers" back judicial filibusters. "If there's a filibuster for a Supreme Court nominee ... where one of the seven Democrats ... participates [in the filibuster], all bets are off," Graham has said.
Mumbling conservatives fear the Gang of 14 has bonded and will want to keep the compromise going come what may. Maybe. Yet it's just as likely that some GOP gang members will feel betrayed if the pact's ambiguities are exploited to allow future filibusters. Today's bonding and bonhomie has the capacity to turn into tomorrow's ill feeling and ugliness. The deal could come apart with more pyrotechnics than it came together.
Smith favored the constitutional option, but he's not down in the dumps about the deal. Says the Oregon Republican, "It's either good news in the short term or will turn out all right in the long term."
Conservatives might cheer up if they look at what some on the left are saying about the deal. The Congressional Black Caucus is as upset as doomsday conservatives. New Republic Online writer T.A. Frank was none too triumphant in evaluating the agreement. "Republicans will allow Democrats to keep the filibuster as long as Democrats never use it," he wrote. "This way, both sides win (except for the Democrats)."
Frank may have cut to the crux of Monday's deal, but we won't know until it's fully implemented. Or not.
Meanwhile, conservatives should take Frank's advice, if not Goldwater's, and start acting like winners.
David Reinhard
