Snatching Defeat From the Jaws of Victory

On Monday, seven Republican senators, led by John McCain, crossed the aisle to join the Democrats and defeat the best chance the Republican majority had for eliminating the filibuster as a means of minority rule.

The deal that was struck let the Democrats wiggle out of a deep hole that they themselves had dug, and in return bought the Republicans nothing. Democrats still have the 'right' to filibuster judicial nominees they believe are 'extreme', a right the seven Republicans agreed to. What did the Republicans get? Up-or-down votes on just three nominees... which they would have had anyway if the "nuclear option" passed. In fact, these nominees would have been voted on without the filibuster battle because the Democrats were taking a public-relations pasting on opposing women and minority nominees, and would most likely have caved on the filibuster attempt for them, reserving the battle over judicial nominees until a Supreme Court nominee occasioned it.

The Democrats had previously offered to let some of these 'extremist' nominees through if the Republicans would submit to the general concept of a filibuster as being a valid way to prevent judicial nominees from getting a vote on the floor of the Senate. What? Preserving the filibuster is more important than opposing 'extremist' judges? What is the argument really about? Think about this; the Democrat position is that it is valid for a minority of Senators to prevent the entire body from fulfilling its "advice and consent" role. How this flies in the face of the Democrat position just a few years ago when they were arguing against Republicans who threatened (but never engaged in) the filibuster to stop certain Clinton appointees.

As part of the deal, Democrats agreed to not filibuster the three most 'extreme' (according to the Democratics) nominees, Priscilla Owen, Janice Rogers Brown, and William Pryor. Just how 'extreme' are these nominees? During her last election to the Texas Supreme Court, Priscilla Owen received 84% of the vote as well as the endorsement of every major newspaper in the state. Janice Rogers Brown, an African-American conservative from California was elected to the California Supreme Court by the majority of the voters in her state. William Pryor was similarly supported by a majority of the voters in the state of Alabama and has served as that state's Attorney General. In each case, how does a person who receives the support of a majority of their home state's electorate come to be viewed as 'extreme' and 'out of the mainstream'?

If these three nominees were the worst of a bad bunch, the most extreme, then why were the Democrats so willing to relent and let them get an up-or-down vote? If they weren't extreme, then why did the Democrats block them from receiving a vote via the filibuster threat? The Democrat position on this merely illustrates the lie that these nominees are extreme at all; the real reason they are being filibustered is that the Dems don't want George Bush and the Republicans to have any influence on the character of the federal judiciary. An active, interpretive federal judiciary—activist judges who make up new 'rights' from whole cloth and thereby impose liberal programs and support liberal agendas that cannot be enacted via legislation—is the Democrats' last grasp on power at the federal level. They will not give up this unelected (and unopposable) source of power without a fight.

Just how dangerous (from an anti-democratic standpoint) is judicial activism? Here's just one example: the Massachusetts legislature was forced into legitimizing gay marriage by the state's Democratic-aligned Supreme Court, against the desires of the elected officials and the will of the people as expressed by their votes. Now, you may be in favor of gay marriage, or you may not. Either way, the proper place to decide this issue is in the legislature so that the electorate may have a say.

Who are the winners and losers of this battle? The Democrats nominally won the encounter, getting essentially what they offered to Republicans (an offer made from a position of weakness in an effort to forestall the "nuclear option") while keeping the filibuster weapon in their arsenal. Republican Senator John McCain nominally won as he painted himself the leader of the "moderate" Senators from both parties who "came together to save the Senate from a catastrophe." Majority Leader Bill Frist came out a loser, double-crossed by renegade members of his own party who bucked the party position, forcing him to temporarily abandon his stated effort of ensuring that every nominee would receive an up-or-down vote on the floor of the Senate.

But is that really who won? What is actually going to happen now that this so-called "compromise" has occurred? Three contentious Republican nominees will finally get their confirmation votes, and will almost certainly become federal judges. Since these three nominees were considered to be the most 'extremist' by the Democrats, will they have any choice but to allow all of the other current federal judiciary nominees a vote? I don't think so. President Bush will therefore get a slew of new judges. However, the compromise didn't end the problem, it merely postponed it into the future.

This whole battle is really about the US Supreme Court, and which justices will be on it. As you may know, the Court is narrowly divided on ideological grounds and many contentious issues are decided on 5-4 votes. The Republicans want to replace retiring liberal justices with conservative ones, and the Democrats want the opposite. To either party, losing ground is not an acceptable option and thus if a moderate justice, say Sandra Day O'Connor, retires, there will be a fight over who will replace her. By constitutional authority, the President has the right to choose Supreme Court justices, and if his party is the majority in the Senate then by tradition he will get the nominees he desires... unless the minority filibusters. However, there has not been a filibuster against a President's federal judicial nominees throughout the history of the Senate until President George W Bush.

So, what was actually accomplished? The Republicans had an excellent opportunity to once and for all take the reins of Congress—something they have failed to do since they won the majority in 1994. That opportunity was lost, given away by seven Republican senators led by John McCain. This battle will be joined again, and soon, because the Democratic base will not stand by quietly while George Bush appoints his judges. What will happen when the inevitable filibuster threat occurs? Having seen enough Republicans cave in to defeat the party's position, will the Democrats be less inclined to hang tough and fight things out? I doubt it. Will the Republicans have more party unity the next time around so they will be able to prevail? I doubt it.

The Democrats have lost control of the White House and of both houses of Congress. However, unlike the Republicans, the party has kept control of its caucuses in Congress and individual Democrat legislators do not thwart the will of the Party as established by the party leaders. Until the Republicans are as effective at working together to accomplish their goals, they will not have the ability to change the federal government and have it reflect the Republican agenda. That is most likely a comforting thought for Democrat voters, and a disturbing one for Republicans.