Wampum

As I said yesterday, allowing Janice Rogers Brown to get a lifetime appointment to the Federal bench is a very bad result. Does that mean that I think that the deal brokered last night to avoid the nuclear option is a bad one? Not necessarily. Please allow me to make three points.

First, to evaluate the result of any negotiation, one must first ask, “Compared to what?” If the seven Democrats had not agreed to the deal, would the nuclear option have succeeded or failed? It was reported yesterday that Reid had 49 votes against the nuclear option with several more possibilities.

Jeralyn writes “Harry Reid had 49 votes. We would have won.” It takes 51 votes to win. If Reid could have mustered 51 to kill the nuclear option while still preventing a vote on Brown, Owen, and Pryor, then the deal doesn’t look so good. If he was stuck at 49 or 50, then the deal prevented the confirmation of three bad judges and (perhaps) took the nuclear option off the table for a possible Supreme Court nominee this summer. That is a preferable result and, therefore, in that circumstance, the deal is a good one.

So, did Reid have 51 votes or not? I do not know but given how happy Reid seemed last night and how unhappy Frist seemed my guess is that he did not.

Secondly, if Brown ends up losing her confirmation vote, then the deal is substantially better for Democrats. She really is unacceptable and perhaps six or more Republicans feel the same way. A commenter at the Political Animal reports that Lindsey Graham said that one of Brown, Owen, or Pryor would be defeated. I can not find a transcript of Graham having said so. On Wolf Blitzer, Graham said the following:

Well, we have to deal with the present. As Senator Nelson indicated, I think there's enough people in the Senate on both sides that would like to kind of back off the ledge here and give these nominees a fair shot.

To be honest with you, of the eight, I think at least one would be rejected in a bipartisan way. I think most of them would be approved...

Graham refers to one “of the eight” instead of one of the three. It could easily be that the one to whom Graham was referring was Henry Saad who will not get an up or down vote in any event. We shall have to wait to see how that plays out.

Third, one of the reasons for opposing an up or down vote for Justice Brown was that it could set a precedent for what constitutes “extraordinary circumstances” justifying a filibuster. The GOP moderates may argue that no nominee less extreme than Brown should be subject to a filibuster. If Democrats mount a filibuster on a less extreme nominee, then the GOP moderates promise to oppose the nuclear option is no longer operative. As Mark Schmitt wrote:

But if "extraordinary circumstances" is coupled in a deal with an agreement to let either Priscilla Owen or Janice Rogers Brown's nominations go through, then it is totally unacceptable. That's because in that combination, Brown or Owen would come to define the line of "extraordinary circumstances." That is, assume Brown goes through -- after that, anyone with views less extreme than Brown would implicitly be considered not extraordinary. Bush could name Brown herself to the Court and Democrats would be paralyzed. And the problem with that is simply that there are no possible nominees to the Supreme Court whose views are more radical than Justice Brown.

Matthew Yglesias is also concerned about that precedent:

If the Republican dealmakers really do decide to construe the filibuster of any Supreme Court justice slightly less-bad than Janice Rogers Brown as contrary to the spirit of the agreement, then it's hard to see what the Democrats have gained here.

If Brown loses the confirmation vote, that concern is misplaced. Democrats are not required to filibuster every nominee that is awful. They are permitted to defeat them instead. Harry Reid should mount a filibuster of Owen, Brown, and Pryor. The moderates will vote to invoke cloture but the right to filibuster is not contingent on defeating a cloture motion, only on trying to. No precedent is set by the failure to have the votes to prevail.

In addition, the precedent argument cuts both ways. Democrats can argue that the deal sets a precedent that the nomination of anyone at least as extreme as Brett Kavanaugh, William Myers, or Henry Said constitutes “extraordinary circumstance” justifying the use of the filibuster to block an up or down vote.

The People For the American Way, for instance, oppose Brett Kavanaugh on the following grounds:

The PFAW report documents that Kavanaugh’s legal career has been almost entirely devoted to right-wing partisan and ideological pursuits that raise deeply troubling questions about the impact he could have on Americans’ rights and freedoms as an appeals court judge. The report also notes that his legal resume “pales in comparison” to other D.C. Circuit nominees.

The PFAW report examines:

• Kavanaugh’s key role in the Bush Administration’s nomination of far-right ideologues to positions on the federal appeals courts.

• Kavanaugh’s coauthorship of the Starr Report’s section on grounds for impeachment, an ideological document that even some conservative legal commentators have criticized.

• Kavanaugh’s attacks on executive privilege as a Starr protégé and, in contrast, his leading role in developing and defending the Bush Administration’s unprecedented and excessive claims to executive branch secrecy.

• Kavanaugh’s relative inexperience, particularly compared with previous nominees to the important D.C. Circuit. For example, of the ten cases he reported as his “most significant,” in two he did nothing more than file friend of the court briefs. In one case, Kavanaugh filed a brief before the Supreme Court arguing for a ruling that would have left public school students vulnerable to a range of coercive religious practices. Kavanaugh’s position was rejected by the Court 6-3.

That is pretty thin wingnut gruel compared to Brown, Owen, Pryor, or some of the other names mentioned for possible Supreme Court appointments.

Take William Myers as another example. Here at Wampum, we opposed his nomination on the grounds of inexperience and for showing contempt for religious views other than his own by supporting the desecration of graves.

Others have noted that he is a corporate hack with a poor environmental record, and that he has a narrow view of the commerce clause.

Once again, Myers is a lousy nominee but in terms of being an extreme, out of the mainstream wingnut, he is no match for Justice Brown. To my knowledge, he has never argued against the incorporation doctrine that makes the Bill of Rights applicable to the states. He has not argued that minimum wage laws, Social Security, and other New Deal legislation is socialist and akin to slavery.

In defining what “extreme circumstances” means, the proper question is not:

Who is the most extreme nominee who was not filibustered?

Having the power to block a nominee through use of the filibuster is not the same as having a duty to do so in each instance.

The proper question is:

Who is the least extreme nominee for whom a filibuster has been determined to be justified?

That makes the precedent established by the compromise much more favorable to Democrats.

Update:
Digby writes:

My only question going forward is this: if Janice Brown is not considered to be an "extraordinary circumstance" then who in the world could Bush possibly nominate who would be worse? Ann Coulter? (She does, after all, call herself a constitutional scholar.) I'm not sure that there are any judges who are to the right of Brown or who express more hostility not only to the constitution but to the enlightenment thought that guides it. The only thing absolutely worse would be to put an Islamic fundamentalist on the supreme court.

Until I thought about it a lot, I agreed with that argument. I no longer think that argument is valid. The issue is when the minority is justified in mounting a filibuster of a judicial nominee. The agreement calls for seven Democrats to vote for cloture on the vote concerning Justice Brown's nomination. Reid and the remaining 38 Democrats can and will mount a filibuster against Brown. That filibuster will lose and cloture will be invoked. The fact that the filibuster will lose does not change the fact that the nomination was filibustered. See Richard Paez.

Thus, the coming Brown confirmation will stand for the proposition that a filibuster of her nomination is constitutional. The only precedent that I can discern is that the GOP has acknowledged that the filibuster of nominees like Myers and Kavanaugh are legitimate exercises in minority power. If the coming Supreme Court nominee is farther from the mainstream than those nominees, precedent suggests that extraordinary circumstances exist and that a filibuster is appropriate.

Filibutering and losing on Owen, Brown, and Pryor does not set a limit on the least extreme person whose nomination would constitute extraordinary circumstances. The sucessful filibusters of Kavanaugh and Myers do set a limit in that any nominee more extreme than those two can not constitute extraordinary circumstances.