May 24, 2005, 9:45 a.m.
The Deal’s No “Victory”
Republicans have been rolled.

I agree with John Podhoretz that politics in the real world calls for some compromise — at least when a matter of principle is not involved. But he’s dreaming if he really thinks the filibuster “compromise” struck last night in the Senate is a “victory.”

Let’s say the signatory senators had not bothered to write up the kumbaya agreement with all those pretty phrases about “mutual trust and confidence” and “good faith” and “spirit and continuing commitments” (gossamer, if ever there was, rivaled only by “should only be filibustered under extraordinary circumstances” in the depth of its meaninglessness).

Let’s say, instead, that they simply gave us the bottom line: (a) three of the president’s nominees get an up-or-down vote (i.e., exactly three of the pending seven left standing after the Democrats — in that spirit of compromise — whittled down from the original ten); (b) the Democrats remain free to filibuster (but only on the strict condition that, uh, well, that the Democrats feel like filibustering); and (c) the Republicans, on the brink of breaking four years of obstruction, decide instead to punt (and on the eve of a likely battle over a Supreme Court vacancy, no less).

Sound familiar? Yes it does: It’s the deal that Senate Minority Leader Harry Reid offered a week ago — and that was flatly rejected as paltry and unprincipled.

The deal, moreover, says, “Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith.” Well, their responsibility under the “Consent” part of the Clause is to confirm or reject the president’s nominees. Period.

Yet, it is in the very next sentence that the purported right to filibuster — in plain English, to avoid the responsibility of confirming or rejecting the nominee — is preserved. And it is preserved without even the pretense of an effort at clarity about what conceivable “extraordinary circumstances” could justify the avoidance of this constitutional responsibility the signatories are going to exercise in good faith…except when they unilaterally decide not to.

Ah, but there is one thing the senators do make a clear assertion about: “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.” If they believe that, they must be reading a different Constitution.

As I’ve argued here before, the structure of the constitution, the plain language of the appointments clause, and Alexander Hamilton's discussion in The Federalist Papers of the Senate's contemplated advisory role all indicate that the prerogative to nominate is the president's alone. Article II, Section 2 does not speak to Senate consultation about nominations at all.

This gratuitous section of the agreement screams “set-up!” — and one has to wonder if the Republicans realize how badly they have been rolled here. Let’s play it out.

President Bush is obviously not going to consult with Democrats before making nominations — certainly not in the sense of giving them a meaningful role in choosing nominees. But since Democrats have now gotten Republicans to sign on to this contra-constitutional “consultation” provision, they will have a demonstrative leg up in arguing that they are fully justified in filibustering any nominee on whom they were not consulted. After all, they will argue, the president will have violated the Constitution since even Republicans have expressly conceded that its “advice” requirement calls for consultation with Democrats. (Can you not already envision Senator Reid or Senator Leahy waving the agreement in the air while a thoughtful Katie Couric nods solemnly? Can you not already read the editorials and op-eds citing this agreement in the New York Times and the Washington Post?)

The Republican signatories (echoing some of the wishful-thinking commentary about the agreement) can blather all they want about how the deal permits them to go back to pressing for the rule-change if the Democrats filibuster. But bet on it: the Democrats, with all the steely discipline they have exhibited time and again, will counter that a president’s failure to consult, in violation of the constitution, is most certainly an “extraordinary circumstance,” triggering a filibuster. Having agreed in writing that the president has such a constitutional obligation, the GOP signatories (who, of course, don’t want to challenge the filibuster rule anyway) will be hard-put to object.

So, the agreement strikes a deal that was properly rejected as unacceptable only a few days ago. Risibly couched in the rhetoric of “compromise,” it freezes in place an outcome in which 70 percent of the ten nominees at issue have been defeated. To the extent it says anything of immediate consequence, it is unenforceable. And to the extent it says something definitive, it is wrong and it lays important groundwork for future filibustering. Some victory.

Withal, John dons rose-tinted glasses and says the deal “establishes the principle that conservative judges have every right to serve on the higher benches even if Democrats can't stand it.” In this straw-grasping lies the truth about just how badly defeated conservatives are here.

Does anyone really think it needed to be established that conservative judges “have every right to serve on the higher benches”? That is self-evident. But, in today’s arrangements, notwithstanding a president reelected with more votes than any president in history and a one-sided 55-45 margin in the Senate, that which is self-evident somehow needs to be reestablished as a “principle” whenever a determined minority objects.

Alas, reestablishing a principle already long established turns out to be hard work — the vigor for which appears sadly lacking.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.