Initial Reactions (the filibuster deal)

NRO ^ | 5/23 | Ed Whelan

[ambrose]

Initial Reactions [Ed Whelan 05/23 09:46 PM]

1. The Memorandum of Understanding is silent as to one nomination that is already on the floor, that of Thomas B. Griffith to the D.C. Circuit. It also is silent as to all the other nominations that are already pending but have not yet reached the floor.

All the more reason to think that this MOU marks only a very temporary cooling off. The issue will resurface soon, and it is now crystal-clear which Republicans need, ahem, reinforcement.

2. The Republican signatories' agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories' living up to their end of the bargain. The fact that the MOU contemplates that each signatory will use his own discretion in determining whether extraordinary circumstances exist does not mean that Republican signatories will need to defer to a Democrat signatory's determination. On the contrary, it means that a Republican signatory is free to use his own discretion to determine that a Democrat signatory's determination of extraordinary circumstances amounts to a violation of the MOU. And the nomination of any person who elicits fewer Democrat objections than Brown, Pryor, or Owen should not constitute "extraordinary circumstances".

3. The idea that the Constitution contemplates that the President will consult with the Senate before making nominations is belied by the text of Article II, section 2, clause 2, which provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" judges. As a matter of basic grammar, the phrase "by and with the Advice and Consent of the Senate" plainly modifies "shall appoint," not "shall nominate." And the idea that consulting Senate Democrats about prospective nominees would somehow have any value is ludicrous.

[RandyRep]

Whelan makes excellent points here. Hopefully, the White House Counsel (or Attorney General) will state the correct interpretation.

I have always consider the "Advice" part to be the Judiciary Committee review and approval of the nominee. The whole Senate doesn't get to "Consent" until the Judiciary Committee "Advises" that the nominee is approved by the committee.

[Mobile Vulgus]

At fist I thought this was a 100% Democrap win. Now I have read a bit more on this thing, I am starting to incline toward a Dem. loss to a degree. But not ENOUGH to a degree.

-It looks like the GOP has won the ability to deploy the supposed nuclear option at any other time. We are at a cooling off period as the above said.

-The GOP has won the up or down vote on some of the stalled nominees.

-The Dems have won the appearance of working "with" the GOP and being the "compromisers" shading the GOP as the ones who were fighting too hard.

-But the Dems have lost the ability to filibuster the judges as strongly as they were claiming they were going to. Because if they DO go on to filibuster from this point it will look like they are just plain liars. So, they lost that point.

This is my feeling currently. I will have to see some more reporting to be sure, though.

[cainin04]

My view is that the republicans who did this are out of touch. Where is the list? I know McCain is a part of this. Who else?

[John Valentine]

And the idea that consulting Senate Democrats about prospective nominees would somehow have any value is ludicrous.

Any President agreeing to this will diminish the Presidency for himself and for every succeding President. For that reason I think no President of either party could agrre to such terms.

Note that the Senators expressed this thought in the form of a wish.

It is a forlorn wish, indeed.

[WoodstockCat]

I agree he makes excellent points but in my mind it's akin to the 1938 agreement and "peace in our time".
this "might" last until Scalia gets nominated for CJ and then a strong conservative gets nominated to fill his post.
It's over when O'Conner resigns and suddenly the Court hangs in the balance according to the Dems.
I guess my bottom line is why now?
Why are these seven afraid of grabbing some real power for a change.
We made a deal we didn't need to make.
OTOH, McCain just lost 20% of the 2008 primary voters and Allen/Frist just picked them up.

[The Ghost of FReepers Past]

But the majority of Senators are being denied their right to advice and consent.

[patriciaruth]

McCain, DeWine of Ohio, John Warner, Lindsay Graham, Olympia Snowe, Susan Collins, Lincoln Caffee evidentally were the signatories to this [expletive deleted].

[TeenagedConservative]

Democrats: "You might want this ass of which we so handily deprived you once more."

[Mobile Vulgus]

I disagree that Frist has gotten anything. He looks like a weakling!

George Allen is a good candidate so far, though.

I am not sure if I am reading this agreement right, but have the Republicans agreed to forswear the "nuclear option"!!??

If they have, then we do have a GOP loss.

[WoodstockCat]

no apparently as I read it, the agreement not to drop the bomb is contingent on the Dems only pulling a fillibusters in "extraordinary" circumstances.
So it leaves the bomb open if 2 of the 7 see a fillibuster of a nominee as breaking the agreement.
I'm trying to see this as a win in the fact that Janice Rodgers Brown scares the Dems as a SC nominee more than Clarence Thomas because I doubt there's a male black employee to claim sexual harrasment, but who knows.
She'd make a brillant jurist for the next 20 years.

[RandyRep]

So it looks like the guys who define first the term "extraordinary circumstances" may have the upper hand. Our side needs to jump on this faster than the Dems and the Gang of 14.

To me, "extraordinary circumstances" should be ethical lapses, making rash and unproven statements, having a demonstrable bias, be unacceptable to the ABA, etc. The extraordinary circumstances should not be any kind of a litmus test -- "judicial originalist," "republican appointed," "being a Roman Catholic or evangelical Christian," "being pro-life,"etc.

[ArmedNReady]

When you are in a position of strength, you force your opponent to accept what you desire. You lose your position of strength when you grant your opponent their desires.

Sorry, but the GOP (Groveling Old Pussies) have lost this one by TKO.

It's time to start a new, truly conservative and truly constitutionally-oriented party to replace these sellouts.

[Tennessean4Bush]

It's time to start a new, truly conservative and truly constitutionally-oriented party to replace these sellouts.

Yeah, and become permanent minority status for the next 50-75 years. Sounds great.

[Yosemitest]

NOT ONE PENNY!!!

I'm angry enough to pledge money to real conservatives who will run against these RINO's and replace them. How about $100.00 a head?

I encourage everyone to attack!

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