June 14, 2005
Math is Hardnosed
Pejman Yousefzadeh writes on RedState.org:
The New York Times has a truly bizarre editorial on The Deal involving judicial filibusters. One bizarre portion is the following:
Last month, 14 senators injected some sanity into the situation by signing on to an agreement to preserve the filibuster. Regrettably, Mr. Frist appears to be itching to undo the deal. He has declared that it allows senators to filibuster judicial nominees only "under extraordinary circumstances." If Democrats filibuster a nominee who does not meet his standard of "extraordinary," Mr. Frist has suggested, the Republican signatories should break their promise.The confrontational stance taken by Mr. Frist - a likely candidate for president in 2008 - is just what the far right wing of the Republican Party wants to hear. But it badly misreads the document the 14 senators signed. In a "memorandum of understanding," they made a commitment "to oppose the rules changes in the 109th Congress" - a commitment they should stick to. The memorandum does say that senators should use the filibuster only in "extraordinary" circumstances. But it goes right on to say that "each signatory must use his or her own discretion and judgment in determining whether such circumstances exist." In other words, it is up to each of the 14 senators, not to Mr. Frist, to decide what circumstances are "extraordinary."
(Emphasis mine.) Um . . . no. First of all, you can read the full text of The Deal here. Secondly, the wording cited by the Times does not state and cannot be reasonably interpreted to mean that "it is up to each of the 14 senators, not to Mr. Frist, to decide what circumstances are 'extraordinary.'" What it means is that "each signatory" is bound by "his or her own discretion and judgment in determining" whether extraordinary circumstances exist. But that does not mean that Senator Frist cannot also make a claim as to whether extraordinary circumstances exist in the case of a particular judicial nominee. Otherwise, the Times editorial simply gives the 14 Senators absolute veto power over the propriety of a filibuster and tends to shut out the other 86 Senators from being able to weigh in independently on the issue. The results are absurd.
A couple things, here.
One, obviously, is that the Times editorial board has no power over the U.S. Senate. So we can ratchet the hysteria down a little.
Two, there's been a lot of confusion over what the "Deal" means and how binding it is and what "extraordinary circumstances" are. I think it's important to put this all in the proper context, which is the current reality of the voting blocs in the U.S. Senate.
The U.S. Senate today is governed by some rather ironclad mathematical laws. There are 55 Republicans, 44 Democrats, 1 Independent, and Dick Cheney as a potential tie-breaker. The Republicans can pass pretty much whatever they want as long as they hold together, something they've been remarkably good at the past several years.
Without the Deal, you have 45 Senators (44 Democrats and, I presume, 1 Independent) voting against the nuclear option. You have 55 (give or take) Republicans voting for it. Barring some bizarre procedural maneuvering by the Democrats, the filibustering of judicial nominees is no more.
With the Deal, 7 Republicans have agreed to vote with the Democrats should the issue come up, and should they decide that the circumstances are "extraordinary." If they do that, Frist and everybody else can think whatever they want but the votes aren't there for the nuclear option. Similarly, if the Democrats want to filibuster a nominee and the 7 Democrats in the Deal don't think it constitutes "extraordinary circumstances" then the filibuster will fail on a cloture vote (55 + 7 = 62, enough to close debate) and the nominee will go to the floor (where 55 Republicans will vote them in).
The ability of the other 86 Senators "to weigh in independently on the issue," or at least the actual result of that process, is precisely what puts these 14 in the position of power. Because the pro- and anti-filibuster blocs are so balanced (45 pro and 48 anti-) the 14 in the middle do effectively have the decision making power.
They are the ones who get to decide what constitutes "extraordinary circumstances." Frist can "make a claim as to whether extraordinary circumstances exist in the case of a particular judicial nominee" all he wants, but if it goes to a vote he loses. Period. His opinion doesn't matter.
One last point from the same article:
No less absurd is the following blatantly false assertion--which is remarkable for its inclusion in an unsigned editorial from The Paper Of Record:
The vast majority of President Bush's judicial nominees have sailed through the Senate. But Democratic senators have, quite reasonably, blocked a handful of the most extreme ones. Bill Frist, the Senate majority leader, has been so irate that he has not been able to get every last nominee approved that he has threatened to do away with the centuries-old right of senators to filibuster....
This is fatuous nonsense. First of all, Senator Frist is not irate that "he has not been able to get every last nominee approved." He is irate that he has not been able to get every last nominee the courtesy of an up-or-down vote.
Let's cut the crap. We all know that there's no difference between these two scenarios. The math of the Senate (55 Republicans, 45 Democrats/Independent) dictates that, in an up or down vote, the nominees will be approved. This whole "courtesy of an up-or-down vote" nonsense is merely the velvet glove over the iron fist.
Posted by ben at June 14, 2005 12:35 PM