Nuclear Compromise

Tuesday, May 24, 2005

Nuclear Compromise

I'd like to step back from evaluating this particular deal and talk about the bigger picture. My own feeling has always been one of discomfort--to say the least--with filibusters against judicial nominations. Indeed, I'm not very keen on aggressive efforts to defeat nominees on the floor. Supreme Court nominations go into a somewhat (but only somewhat) different category, but I think that the Senate should generally be quite deferential to the President's choice of lower-court nominees.

The problem here is that even if one agreed with my principles for how the system should work, the recent history of judicial nominations has made my approach impossible as a practical matter for political reasons. On the other hand, practical politics also made it necessary for cooler heads to prevail as we approached detonation of the nuclear option. As I explained in comments to a recent post of Eugene's (with one added sentence in italics):

Unfortunately, the moment for sensible compromise passed during the first half of Bush's first term. At that time, with the Dems in control of the Senate and tons of vacancies on the bench (per the GOP's plan to keep those vacancies there for years in the hope that a Republican president would be able to fill them), Dems might have had the leverage to say, e.g., for every two of yours that we confirm to the appeals courts, you reappoint one of Clinton's that the GOP blocked from getting a vote.

Obviously, since the Republicans hoped to retake the Senate in 2002 (which they did), there would have been a limit on how hard a bargain the Dems could have driven. But without undoing the damage caused by Republicans' blocking Clinton's nominees, we were bound to get into a continuing cycle: GOP screws Dem president's nominees; bitter Dems respond by screwing a smaller number of GOP president's nominees but in much more spectacular fashion (via filibuster); bitter GOP screws the nominees of the next Dem president, via filibuster if there's a Dem Senate majority; bitter Dems . . . .

It'll be like the Balkans: whoever lost the last war will feel wronged and justified in starting the next one, and we'll just go on, and on, and on like this.

Saying "we'll undo some of the damage we did to your guys, and then we'll all agree to behave better in the future" seems to me to be the only obvious way to break the cycle. Breaking it by force--i.e., the nuclear option--will just embitter the other side more and leave them with a score to settle, which they will do in a very ugly fashion if need be. But the sensible solution is no longer an option, both because there are now very few vacancies on the Courts of Appeals, and fewer still for which Bush hasn't already named someone, and because the GOP has made such a big show of demanding carte blanche for the President that a compromise along the lines I've suggested would be politically disastrous for them.

If Feddie is "furious about this nonsense," he ought to lobby his GOP senators (I believe he's a constituent of two of them) to propose reappointment of some of the scores of Clinton nominees who were blocked by nonsense like one-senator holds, blue slips, refusal to bring nominees to the floor, etc. Personally, I'm very uncomfortable with the notion of filibustering judicial nominees, and I was surprised the Dems did it. And filibustering may do more institutional damage than the more subtle methods used by Hatch, Helms, etc. to kill Clinton's nominees, because filibusters pit the parties directly against each other and may engender more bitterness (though the argument that it's unconstitutional seems very weak to me).

But however one ranks the various tactics on the scale of "nonsense," what the GOP did to Clinton's nominees was disgraceful. Expecting the Dems to ignore that history in resolving the current impasse is unrealistic, to say the least, and Republicans aren't being "weak-kneed" in understanding why their Democratic colleagues are so pissed off and trying to figure out how to deal with the political situation realistically.

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