A Betrayal of Historic Proportions

May 26, 2005

Though even some conservatives disagree, no matter how you spin it, this compromise agreement among the 14 self-anointed Senators is a big loser for Republicans and for the country.

The best way to measure this is to compare what is likely to happen with the agreement in place with what likely would have happened had the agreement not been reached.

Republicans received only one “concession” in the deal: Democrats agreed not to filibuster three judges, Janice Rogers Brown, William Pryor, and Priscilla Owen. But many believe Republicans had sufficient votes in the Senate, especially with Vice President Cheney’s tie-breaking vote, to prohibit the practice of filibustering judicial nominees altogether. So the so-called concession was not a victory at all, but a net loss. (Note also that Democrats didn’t agree to vote forthese three nominees, just not to prevent — unconstitutionally — the full Senate from voting on them.)

The milquetoast sham document recites that its fourteen signatories were upholding the “traditions of the Senate,” but they did precisely the opposite. The Constitution contemplates thatallthe president’s judicial nominees be voted on by the full Senate, not that a militant minority can hold hostage the majority and thwart the will of the people.

The fourteen might as well have said, “We’ll agree not to violate the Constitution on a measly three appointments, provided we expressly reserve our right to thwart the Constitution in every other case.

The signatories’ promise to filibuster nominees only under “extraordinary circumstances” doesn’t make this poison pill any easier to swallow. It is what we refer to in contract law as an illusory promise. Not only is “extraordinary circumstances” not defined; the next clause expressly gives the green light to each signatory to “use his or her own discretion and judgment in determining whether such circumstances exist.”

Some incorrigibly naive conservatives say Democrats won’t be able to get away with blocking “conservative” judges in the future, having agreed not to block Brown, Pryor and Owen, who everyone agrees are originalists and “conservatives.” But Democrats can simply say that by agreeing not to block a vote on these three, they weren’t conceding the nominees weren’t “extraordinary,” but that they were an acceptable, short-term compromise in exchange for the right to block similarly conservative nominees in the future.

Even if Democrats would hold themselves to a consistent standard — which is laughable — they can always manufacture artificial reasons to oppose philosophically similar judges on ethical and other grounds. And there is evidence that some are in the process of digging dirt on prospective nominees at this very moment.

Now, what did the feckless seven Republicans give up by signing this agreement? Well, they formally sanctioned an unconstitutional practice — that of requiring a super-majority to confirm judicial nominees. They further emasculated the president’s judicial appointment power by presumptuously suggesting that he consult with senators from both partiespriorto sending his nominations to the Senate.

Republicans have also bestowed upon Democrats a public relations victory by implying that it was the Republicans, not Democrats, who were breaking with historical precedent and violating the spirit of the Constitution. In short, Republicans had the moral and historical high ground and voluntarily surrendered it to a militant Democrat minority by tacitly agreeing to a false version of the facts and history.

Even worse, the agreement effectively disenfranchises the majority of the electorate on the most important domestic and social issues facing the nation and which drove many of them to the polls in November. Millions of voters cast their ballots for national candidates in reliance on their belief that these people would stand up for them in the culture war by working to rid the courts of activist judges.

This “compromise” deal is a gigantic slap in the face to these voters by an elite cadre of legislators who seem to care more about “collegiality” among their Senate colleagues than vindicating constitutional principles. Even assuming 14 out of 100 Senators can establish comity, would you rather have 100 senators getting along wonderfully while selling constitutional principles down the river, or having these 100 at each others’ throats while preserving the Constitution?

Besides, the feckless seven didn’t sign this agreement to promote comity. They did so because they don’t agree with the president’s choice of judges or the majority’s position that judicial filibusters are unconstitutional.

John McCain himself said the constitutional option should not be invoked because it would result in Democrat presidents, in the future, having their judicial nominees confirmed by a simple majority. Well, Senator, that’s the way it’s always been, but you have put your imprimatur on the Democrats’ distorted version of facts and history. Truth be known, these seven GOP moderates agree with the Democrat extremists that mainstream conservatives are the extremists.

This compromise deal is a travesty for Republicans, for the nation and for the majority of voters, who had a right to expect that their chosen executive and legislative officials would begin to correct the egregious trend of the judiciary away from the Constitution and traditional values.