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ATLANTIC HIGHLANDS HERALD |
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THE SAUSAGE DEALFrom FDR we got the New Deal. From Harry Truman, the Fair Deal. And just recently, from fourteen senators of the 109th Congress we got da Big Deal. Sage political observers say politics is like sausage-making. Ordinary persons should not watch either process because it will (as the kids say) gross you out. The truth of that waggish humor was demonstrated so clearly on May 23, when seven Republican and seven Democratic senators announced a “compromise” to resolve the dispute over filibusters on the president’s judicial nominees. The seven Republicans deserted their Senate leadership to make the deal. It was, indeed, an ugly thing to watch. Through both of Mr. Bush’s terms, Democrats have filibustered his nominees to keep a third of them from receiving confirmation votes. Finally, Senate Majority Leader Bill Frist said he would change the Senate’s filibuster rule by simple majority vote. The new rule would not permit confirmation votes on judicial nominees to be blocked by filibusters. Democrats and Big Media called the change the “nuclear option”; Mr. Frist called it the “constitutional option”. Senate Democrats reacted to the proposal as though the very heart was being torn out of the republic. Other fine points of Senate protocol went unmentioned, including the fact that funding bills currently may not be filibustered. Robert Byrd and other Democrats also delicately neglected to recall their history of trying to abolish the filibuster when their purposes were being thwarted. Nevertheless, Mr. Frist was clearly determined to get the president’s nominees their up or down votes, and he acted as though he had enough votes (51) to change the rule. The vote was set for May 24. At the last minute, though, the gunfight at the OK Corral was averted. The Gang of Fourteen’s Big Deal nixed the rule-change by robbing Mr. Frist of his majority. (The seven Republicans promised to oppose the change.) Immediate confirmation votes were promised on three of the stalled nominees – i.e., Priscilla Owen, William Pryor, and Janice Rogers Brown. Democrats also solemnly pledged not to use the filibuster against future nominees except in “extraordinary circumstances”. Votes on other stalled nominees were not mentioned. Democrats quickly made a great show of celebrating their “triumph”. Windy speeches wafted forth on how the hallowed traditions of the Senate – nay, of the very nation – had been saved from rapacious majority rule. (Democrats evidently never exercised majority rule during the entire 60 years they held the Congress – an amazing record that may never be equaled.) For their part, conservatives put on long faces and grumped about “snatching defeat from the jaws of victory”. I was disappointed, too, that the historic confrontation did not play itself out. In the Deal’s aftermath, the sausage-simile seemed so apropos. On reflection, however, I am not as sure about winners and losers as I was two weeks ago. In the cold light of day Democrats are, I suspect, less sanguine about their “victory”, and Republicans might now be a little more upbeat than they were on May 24. The score, as I make it out, stands:
My evaluation is that Democrats – feeling the public’s hot breath on their necks about the filibusters – cut the best face-saving deal they could. To get the seven Republicans to leave the filibuster rule intact, Democrats had to release three of Mr. Bush’s nominees and promise not to filibuster future ones. “Exceptional circumstances” allows political wiggle-room, of course. But really, how many former Klan members (see Senator Robert Byrd), ex-Nazis, or serial killers will Mr. Bush put forward? (Surely, “exceptional circumstances” can’t mean anything less.) Pushed to the brink by the crafty Mr. Frist, Democrats made a truce, loudly declared victory, and tried to regroup. Methinks, however, their celebration bell rings hollow. Agreeing to let Judges Owen, Brown and Pryor slide through is particularly rich. Democrats had denounced these nominees from the housetops as “extremists”, “conservative activists” (a bizarre non-sequitur) and “out of the judicial mainstream”. But now – voila! – they are good to go. This recalls the Catholic Church’s 1965 ruling about eating meat on Fridays. One week it was a sin; the next week it was OK. It’s not really a joking matter. Some Catholics never got over the Church’s flip-flop on what had been a article of their faith. And some Democrats might not recover from the flip-flop on these nominees. (Are they a threat to the republic, or not?) Conservative commentators have worked themselves into a lather over the missed opportunity to end filibusters of judicial nominees once and for all. I would have preferred that, too, but I’m not sure Senator Frist really had the votes to do it. Several senators in his camp seem very uncertainly aligned with his leadership. All have waxed lyrical about preserving the Senate’s “time-honored traditions” – a ploy to solicit good press from the liberal media. John McCain – Mr. Frist’s political arch-rival – is chief among this company. The media love him because he often opposes his own party on key issues. Mr. Frist might have sensed that the Deal was prudent. But the sackcloth and ashes over the missed opportunity are premature. Another shot at undoing the filibuster-tactic will arise. Perhaps one last round of “Can’t We All Just Get Along?” was needed before the scales finally fall from the eyes of timid Republicans. When Democrats next block a judicial nominee by filibuster, as they are certain to do, the Big Deal will evaporate. Then, even the Seven GOP Dwarfs will see that Democrats have no intention of letting Mr. Bush stock the courts with conservative judges. Although he has every right to do so, Democrats cannot allow it. As I showed in an earlier column, Democrats’ concept of “normalcy” has activist courts enacting a liberal agenda by fiat that the Congress cannot legislate. To preserve this extra-Constitutional advantage, they will treat the Deal as “a scrap of paper” (1) when it suits them. Mr. Frist has been criticized for not fighting harder against the deal-making cabal. But it makes sense to save your ammunition for the big battle. All Washington thinks Supreme Court Chief Justice Rehnquist will resign this year – perhaps as early as summer. Mr. Bush will then nominate a sitting Court member for chief justice and a new candidate for associate justice. Democrats are dead certain to filibuster both. When they do, Mr. Frist will again unsheathe the “constitutional option”. If he mortally smites the filibuster-rule, the Dwarfs will be quiet as church-mice. Will Mr Frist do it? Or will Democrats back down and let Mr. Bush’s Supreme Court nominees through? My crystal ball is cloudy. I hope the rule will be changed, but either way the Democrats will lose. Mr. Bush will get his judges, and the long march to reform the courts will have begun. It will be the hallmark of Mr. Bush’s presidency. The judicial-filibusters of 2001-’05 will be remembered the way the 83-day filibuster of the 1964 Civil Rights Bill – spearheaded by southern Democrats – is remembered: as the last gasp of an archaic ideological minority. In ’64 the country was ready to shed institutional racism and move forward into the future. This time, we’re ready to discard judicially dictated liberalism and return to true self-governance. We are equal to the task. It will happen. ******* (1) Kaiser Wilhelm’s memorable term of disdain for his country’s commitment to Belgium’s sovereignty in 1914.
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