Extraordinary Circumstances - the Road to Perpetual Filibuster

The Left’s latest bid to overturn the seven-month-old presidential election has partially succeeded.

Late Monday night, a coalition of seven moderate Republicans agreed to give the Democratic Party the right to permanently obstruct any nominee deemed unacceptable by its activist base. In return for preserving their inalienable right to abuse the filibuster through the end of this Congressional term, the Democrats agreed to stop wielding it against three of the president’s ten judicial nominees.

The bi-partisan coalition of fourteen legislators – including Robert Byrd, Harry Reid, and John McCain – further agreed, “Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.” (You can read the whole agreement in PDF format here.)

That’s precisely the difficulty: the catchall exemption “extraordinary circumstances,” defined only by each individual lawmaker. Senate Republicans will not filibuster any of the president’s nominees, so that means the coalition’s seven Democratic members will determine whether the agreement is worth the paper it’s written on. Their party’s recent history gives no reason for optimism.

Take their treatment of Charles Pickering. As a local prosecutor, Charles Pickering needed FBI protection after testifying against Sam Bowers, a violent Klansman who murdered a civil rights activist with a firebomb. Numerous past heads of the Mississippi NAACP supported Pickering, and numerous black Democrats agreed Pickering impartially administered justice to people of all races. Nonetheless, Ted Kennedy called him an “anti-civil rights judge.” Current DNC Chair Howard Dean called Bush’s temporary appointment to the bench “egregious,” and both Dean and John Kerry said the appointment invalidated Bush’s celebration of Martin Luther King Day the day before.

Miguel Estrada, who withdrew from consideration almost two years ago after a 28-month filibuster, was an assistant solicitor general for President Bill Clinton. All the Senate Democrats, including Reid and Byrd, claimed Estrada “stonewalled” their questions about his judicial philosophy, because he refused to turn over internal Justice Department documents relating to his work there. However, as legal scholar Harold Johnson (no relation) of the Pacific Legal Foundation helped point out at the time, Estrada could not comply with that request. So, the Left set an impossibly high standard and then punished the nominee for not meeting it, until he tired of the game and quit. That’s hardly grounds for Senate “comity.”

Sen. Harry Reid went after Janice Rogers Brown with an axe, calling her “too far out of the mainstream.” He cited as part of his rationale the fact that Brown is opposed by La Raza, MALDEF, SEIU, and…People for the American Way.

Based on their record, we can assume “extraordinary circumstances” to exist whenever:

A nominee is a conservative Southerner (shades of Clement Haynsworth); Refuses to turn over secret government documents; or Is opposed by organized racists, Labor’s socialist fringe, and other über-leftists. Seven Republicans granted all this to the Left in exchange for a vote on 30 percent of the president’s original judicial nominees and an opaque promise of good behavior. They also left President Bush’s remaining nominees – including Arab-American jurist Henry Saad – to their opponents’ tender mercies. This both the political team at the MoveOn PAC and John Podesta of the Center for American Progress deemed “a heavy price.”

This heavy burthen aside, the two Soros-funded organs of the Shadow Party were ecstatic at the announcement. Perhaps the most telling commentary on the “centrist” compromise is the jubilation with which the hard Left greeted it. People for the American Way chief Ralph Neas called this a “major defeat for the Radical Right.” Podesta hailed it as a “victory.” MoveOn PAC – in an exultant e-mail with the subject line, “The power grab has failed!” – congratulates its moonbat membership that “the ‘nuclear option’ is dead unless Republicans break their word. And if that happens we will be in a much stronger position to stop them.”

Sen. Bill Frist said on the House floor yesterday, “The constitutional option remains on the table.” However, this agreement shifts the momentum of any future effort to curtail endless filibuster from Senator Frist and President Bush to the Left. The public can understand triggering the woefully named “nuclear option” after enduring four years of stall tactics directed against low-level judicial nominees – an unprecedented use of the filibuster, at any rate. However, should Republicans move to curtail debate when a filibuster follows the first Supreme Court vacancy, it will be seen as a blatant power grab, the modern equivalent of FDR’s “court packing” scheme.

That obstruction will follow upon the first Supreme Court nomination, there need be no doubt. John McCain has already ceded the Left the right to filibuster a Bush Supreme Court nominee “if it’s extraordinary circumstances.” Sen. John Warner, one of the seven GOP members of the coalition, agreed to vote for that option should the other side engage in a “series” of blockages. If the first such hold comes at the Supreme Court level, Warner would have no grounds for rescinding his written pledge.

Some hail this agreement as a victory, claiming the agreement proves Priscilla Owen and William Pryor are not “out of the mainstream,” as strict constructionists have long argued. However, these exceptions would themselves aid the Left in future filibusters, establishing the perception that whomever Senate leftists would later derail as “even more” extremist than these nominees. If nothing, the fact that the Democrats have allowed a vote on nominees they so recently deemed extremist proves this compromise was not made on principle but out of a desire to maintain their power to shut down the voting process.

All this leads to the conclusion that this decision has preserved, not debate, but obstruction. This accord represents the baptism of “Borking” judicial nominees, the institutionalization of the politics of personal destruction.

More troubling, its verbiage attempts to alter the very nomination process itself, placing the Senate in a consultative position on whom the president names to federal court in the first place:

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.

People for the American Way ended its laudatory praise for this compromise with a similarly ominous note, saying, “It is time for the White House to abandon its confrontational strategy on judges, and to work with senators from both parties to find some consensus nominees, especially in the case of expected Supreme Court vacancies.” Sen. Robert Byrd recently proposed such a plan, in which the president and the senate would jointly draw up a list of “acceptable” nominees supposedly immune to filibuster. John Podesta commented this should be accepted; “Only then can the Senate perform its proper role,” which is “historic but defunct.” (Podesta offered no such counsel when Bill Clinton made three recess appointments to the federal bench and scores to other positions, circumventing Senate “advice” altogether.)

No less a constitutional authority than Alexander Hamilton noted the Founders considered just such a system – and heartily rejected it. Writing in Federalist #77, he declared, “the power of nomination is unequivocally vested in the Executive” branch of government (the presidency). Hamilton also derided a system in which appointments would be made by a “small body, shut up in a private apartment, impenetrable to the public eye…in which cabal and intrigue will have their full scope.” That is, the Founding Fathers did not design the Republic to function with a 101-person co-presidency. We would do well to heed their wisdom; recent “co-presidencies” have not worked well.

When asked how he knew this compromise would not result in leftist Democrats holding up every judicial appointment not named in the agreement, Sen. McCain stated, “I know that I can take them at their word.” A shrill Cold War-era book title once shouted You Can Trust the Communists (to be Communists). Today’s sober update would aver You Can Trust Leftists (to Act like Leftists). Ronald Reagan learned this the hard way in 1982, when the Democrats pledged three dollars in spending reductions for every dollar in new taxes. Reagan pushed through what was then the largest tax increase in history; as Attorney General Ed Meece commented, “The country is still waiting for the spending reductions.” George Herbert Walker Bush learned a similar lesson eight years later. The intervening series of blown budget caps, diverted Social Security overages, and, yes, Senate filibuster rules changes, has not seemed to drive the message home to conservatives.

Given their recent track record, we can be assured Senate Democrats will discover “extraordinary circumstances” anytime their major leftist fundraisers object – especially if that nominee is replacing someone named “Rehnquist,” “O’Connor,” or “Ginsburg.” When they do, perhaps constitutionalists would be wise to follow Dick Morris’ advice: require a real filibuster. Force the Left to shut down all Capitol Hill business to hold the president’s judicial nominees hostage. When Congressional Republicans did this during the 1995 budget crisis, the country turned against Newt Gingrich and swung behind President Clinton, greasing Slick Willie's path to re-election a year later. Let the Left choose between “doing the people’s business” (which they were so keen to “move on” to during the impeachment scandal) and forestalling the people’s expressed, electoral will.

If conservatives won’t learn from their own mistakes, perhaps they can learn from the Left’s successes.

To save the president's time, I think Ralph Neas should just call up the WH and tell Bush who he can nominate instead of all this getting together with senators and making a list of acceptable SC nominees (People for the American Way and A.C.L.U. approved, of course.) That would be the sensible way to approach this. /s

You mentioned Article II, Section 2 and yesterday Andrew
McCarthy had an article in NRO in which he explained this
means a full debate on nominees with an up-or-down vote.
It does NOT mean that the President should submit a roster
of names to some senatorial committee for its approval.
The fact that seven nitwit Republicans accepted that
interpretation in fact curtails the President's executive
authority. I'd have had more respect for the Republicans
had they employed the constitutional option and lost
defending principle rather than caving. The filibuster is
alive and well and in perfect readiness for when it really
counts -- the Supreme Court nominees. This is probably
the last opportunity for a generation to have originalists
and strict constructionalists appointed to that Court.
It appears the Republicans are neither worthy nor capable
of being a majority party. They're certainly practicing
very well for the time when they have minority status.
We now have seen what being a "moderate" truly means:
you help advance your opponent's agenda.

The dims better grab the concept of..."What goes around, comes around".

Yeah right, the Republicans will never have the guts to do anything like the things the dems do. They may talk tough, but no tough action is ever taken.

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