Keep the Kick

We've been spending the last two months fighting to save democracy and all we get is a lousy compromise and three hacks as federal judges?

Democrats are touting it as a win -- and in the power politics calculus of Washington, D.C., it probably is -- but Senate Dems gave up a lot in their agreement to let three right-wingers onto the federal bench in return for "moderate" Republicans agreeing not to let their more rabid colleagues dismantle the filibuster of judicial nominees. Seven Democrats and seven Republicans signed onto the deal on the eve of Majority Leader Bill Frist's planned power play. Compromisers include Democrats Robert Byrd (W.V.), Joe Lieberman (Conn.), Ben Nelson (Neb.), Mark Pryor (Ark.), Mary Landrieu (La.), Ken Salazar (Colo.) and Daniel K. Inouye (Hawaii) and Republicans Susan Collins (Maine), Olympia J. Snowe (Maine), Mike DeWine (Ohio), Lincoln D. Chafee (R.I.), Lindsey Graham (S.C.), John McCain (Ariz.) and John Warner (Va.). They are enough to derail both Democratic filibusters and Frist's attempts to employ the "nuclear option" to change Senate rules in mid-session. So the show will go on. Still ...

Under the deal, which would allow up-or-down votes in all but "extraordinary circumstances," the senators allowed three of Bush's controversial nominees to come to a vote:

• Patricia Owen, who took campaign contributions from and voted consistently for business and insurance interests and against consumers and injured individuals on the Texas Supreme Court;

• Janice Rogers Brown, the California Supreme Court justice who believes that liberal democracy and government regulation leads to slavery; and

• William Pryor, who as Alabama attorney general refused to prosecute corporations he was raising funds from and attacked the authority of Congress to prohibit discrimination and to protect the environment, separation of church and state, reproductive freedom, and equal protection of homosexuals.

The compromisers made no commitment on potential filibusters against four other controversial nominees who had been filibustered in the past: William Myers, Henry Saad, Richard Allen Griffin and David W. McKeague. Senate Minority Leader Harry Reid, who welcomed the deal, said Democrats would continue to filibuster Myers and Saad.

The deal was a victory for the Senate's collegiality, but DeWine said at the May 23 press conference announcing the compromise, "if an individual senator believes in the future that a filibuster is taking place under something that's not extraordinary circumstances, we of course reserve the right to ... cast a yes vote for the constitutional option." So it's a deal waiting to be reneged. We'll see if it holds up in case of a controversial Supreme Court nomination, which could come this summer.

Sen. Russ Feingold, D-Wis. -- who was not among the compromisers -- said it was "not a good deal for the US Senate or for the American people. Democrats should have stood together firmly against the bullying tactics of the Republican leadership abusing their power as they control both houses of Congress and the White House. Confirming unacceptable judicial nominations is simply a green light for the Bush administration to send more nominees who lack the judicial temperament or record to serve in these lifetime positions. I value the many traditions of the Senate, including the tradition of bipartisanship to forge consensus. I do not, however, value threatening to disregard an important Senate tradition, like occasional unlimited debate, when necessary. I respect all my colleagues very much who thought to end this playground squabble over judges, but I am disappointed in this deal."

Our correspondent Max Sawicky commented at Maxspeak.org, "The point of opposition is to obstruct outrageous legislation and appointments. As far as I can see, the Dems have failed to do this, in return for a vague commitment from the GOP to forego a procedural vote that they can always take in the future, in the event opinions differ on the meaning of 'extraordinary.' Ultimately, it is a recasting of the absurd deal we had heard about before: You retain the right to filibuster as long as you don't do so."

Chris Bowers wrote at MyDD.com: "Certainly stopping these nominees was important, but had we even spent half as much effort working to stop the bankruptcy bill, we might have really been able to help some people."

Nathan Newman, who believed that doing away with the filibuster would be a good thing [see "Hope for a Mushroom Cloud," 5/15/05 TPP], at NathanNewman.org scored it as a win for the moderate Republicans, who would have lost their leverage in the GOP caucus without the filibuster threat. "So this deal is perfect for the moderate GOPers. Filibusters are allowed only on judges that the moderate GOPers say may be filibustered. And those moderate GOPers get to vote against those candidates that are filibustered, playing the double game of keeping their conservative bona fides while claiming to uphold traditions of the Senate."

Moderate Dems, on the other hand, "betrayed other Democrats while gaining no real new power. ... I understand that many folks see not losing the filibuster as the victory, but that just reflects the low standards of victory people have developed. Losing less has become the standard of success for progressives, unfortunately."

Still, the Democrats faced an uphill fight in stopping Owen, Brown, Pryor et al., and right-wing activists also were upset that the GOP senators gave up any ground at all. Focus on the Family's James Dobson called it a "complete betrayal."

As Markos Moulitsas Zúniga noted at DailyKos.com, Democrats hold 44 seats in the Senate, with one independent siding with them. That puts them down 10 seats. Reid had 49 votes to protect the filibuster unconditionally, but he couldn't secure the last two he needed. (Neither, obviously, could Frist.) With the compromise, the filibuster is alive, albeit limping.

After the GOP got the Supreme Court in 2000 to set aside Florida state law to put George Bush in the White House; after GOP Leader Tom "The Hammer" DeLay leaned on the Texas Legislature to set aside tradition and Senate rules in 2003 to engineer a mid-decade redistricting of Texas congressional districts to protect the GOP majority in Congress; and after the systematic effort to disenfranchise Democratic voters in last year's election, with suspicious discrepancies between exit polls and official vote counts in several key states; we are on notice that the Republicans will stop at nothing to keep power. Now George W. Bush believes he should be able to name any right-wing water-carrier to a lifetime appointment to the federal courts and the Democrats should not be able to do more than bray.

Bush has three more years of bad judicial choices. The best way for Dems to stop him is to retake control of the Senate next year and give Bush's nominees the "careful consideration" that the GOP Senate gave Clinton's judicial nominees. But that is a long shot, with Dems defending 17 seats, R's defending 15 and Vermont's indy seat open, but progressives need to get over their infighting and set about the task.

In the meantime, insofar as the compromise slows down Bush's momentum and undermines the authority of Frist, it is a good thing. The record shows that Dems will go along with solidly conservative and business-friendly judges if Bush will make an effort at consensus, but there is a point at which the Democrats have to stop braying and start kicking. The compromise at least keeps some kick in the Senate Dems' arsenal.

Just make sure the spirit of compromise does not extend to Bush's proposal to privatize Social Security. -- JMC

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