That having been said, it is a strange sort of victory, isn't it? If you believe that Senator Frist's nuclear option would have been illegal and unprecedented - as we do, along with many constitutional scholars and political analysts - then the Republican leadership should not have considered it in the first place. Is it a victory when the world is returned to what it should be? Do we celebrate normalcy?
-- Princeton Filibuster Group
Putting aside the "illegal" part, this is a suitable starting point respecting my thoughts on the "compromise" that (for the moment) precluded the possibility of a vote on the nuclear option respecting judicial nominees. It recalls Abe Lincoln's Cooper Union Address in which he spoke of how "cool" (wicked) it would be for a highwayman to bargain with the person he is robbing: the person's money and life is his own, so he need not have the obligation to choose among them.
To those crying "victory is ours," keep that in mind, including the bit about bargaining with thieves. The cry has a certain desperate and rosy-eyed ring to it anyhow. First, the top three worse nominees, deemed patently a threat if they were confirmed, basically are guaranteed votes. No "extraordinary circumstances" there [so says one of the compromise wing, though thankfully perhaps William "torture memoranda" Haynes might be.] Thus, those that even strong supporters of Bush have found wanting, will receive lifetime appointments.
Oh, say some, the far right are gnashing their teeth, and Sen. Frist looks bad! The fact that the forces of darkness (choose the dark side Luke!) did not get all their ice cream is something -- and, Justice Scalia is not a totally bad justice either. I still don't want his wing of the judiciary (or those worse) to dominate, and the fact that we might have received the right (if the compromise wing give their permission) to block a couple choices (to be replaced by same old same old) is nothing TOO exciting. Anyway, gnashing seems to benefit the other side.
And, you get the idea some feel this is the best we could do, since there were only 49 votes. Well ok. This is a "risk adversion" measure then ... it is not exactly a "victory," is it? As Sen. Feingold, who strongly rejected the compromise, noted he used a "extraordinary circumstances" test (without the need to check with seven Republican colleagues) throughout. He also noted -- sure to be forgotten -- that three Clinton nominees to the Fifth Circuit never received a hearing under the Republican controlled Senate. Up and down vote? Liars. But, what of ...
We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the President?s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
Does not this and the survival of the filibuster mean something, especially when the Supreme Court nominees come around? You mean a horatory call of "encouragement" for you know who to "consult" with "Democrats? Does this include a "pretty please with sugar on top" or the choosing of the usual turncoat/doughface ones used by the administration when useful? Just how useful is this? Finally, this again ignores that lower court battles matter. Thousands of cases vs less than a hundred a year. And, the public clearly accepts battles for nominations of justices. I just don't think a nuclear option affecting them would have stood anyway.
Finally, as David Corn notes, what if Owen is nominated to the Supreme Court? Extraordinary circumstance? Why then? Would she suddenly be out of the mainstream then? (I don't really care for this meme anyway -- it has a certain ordinary/boring ring as if a truly special choice would be disqualified) All in all, his comments have a ring of truth, ending with "But undermining the filibuster is certainly more of a gain than a defeat for the GOP."
George Washington and company avoided total defeat by only losing a bit each time, while wearing down their opponents. By that standard, this might be a "victory," albeit (to use the metaphor) a bloody one. It just is not one I am that joyful about.