In the end, Senate Democrats kept what they wanted: the ability to use the filibuster to delay and kill President Bush's judicial nominations.
The filibuster deal announced by a group of 14 senators Monday night may only postpone for a future date — perhaps as soon as next month — another titanic filibuster battle if the Senate confronts a Supreme Court vacancy.
As a result of Monday night's deal, Democrats retain the option to filibuster Clarence Thomas, Antonin Scalia or any other stalwart conservative nominee Bush sends to the Senate.
Seven GOP senators agreed to vote against the rule change sought by Senate Majority Leader Bill Frist to lower the threshold for ending debate on a nominee from 60 to 51.
Given the loss of seven GOP senators who signed the bipartisan accord, Frist had no choice but to shelve his planned vote.
A setback for Frist
For Frist, the deal means that he will not, at least in the near future, achieve what he had months ago committed himself to getting: an up-or-down confirmation vote on all of Bush’s nominees to the federal bench.
Only hours before the bipartisan accord was announced, Bush had made it clear in a White House appearance that he wanted none of his nominees to be denied a vote. "I expect them to get an up or down vote. That's what I expect," he said. "And I think the American people expect that, as well."
Frist was candid enough to admit his failure.
In his statement on the Senate floor after the bipartisan deal was announced by one of Frist’s likely rivals for the 2008 GOP presidential nomination, Sen. John McCain, R-Ariz., Frist said the Constitution “simply requires up-or-down votes on judicial nominees. So, in that regard, this agreement announced tonight falls short of that principle. It falls short.”
The politically piquant note in the night’s events was that it was McCain who announced the bipartisan deal to, in effect, pull the rug out from under Frist.
“We have reached an agreement… to pull the institution back from a precipice that would have had, in the view of all 14 of us, lasting impact, a damaging impact on the institution,” McCain told a crowd of reporters.
A trade-off on nominees
The accord brokered by McCain, Sen. John Warner, R-Va., Sen. Ben Nelson, D-Neb., and others allows confirmation votes on three Bush appeals court nominees who Democratic leader Harry Reid and liberal Democrats had deemed “out of the mainstream” due to their conservatism: Janice Rogers Brown, Priscilla Owen and William Pryor.
But two other Bush appeals court nominees, William Myers and Henry Saad, were essentially “thrown overboard” by the seven Republican senators who signed the agreement.
Their nominations were filibustered last year and will continue to be, blocking confirmation.
In the case of Myers, one irony stood out. Last fall, when Colorado Democrat Ken Salazar, one of the seven Democrats who joined the Monday night agreement, was running for the Senate seat he now holds, Salazar specifically cited his signing an endorsement letter for Myers as proof that he was “not a partisan guy.”
One unwritten part of the accord, according to two Capitol Hill sources, was that Bush appeals court nominees William Haynes and Brett Kavanagh, will not get votes on the Senate floor.
“We will try to do everything in our power to prevent filibusters in the future,” McCain told reporters.
But the text of the deal — formally titled “Memorandum of Understanding on Judicial Nominations” — specifically allows Democrats to use the filibuster to torpedo future Bush nominees, as long as they do it in what they define as “extraordinary circumstances.”
Warner told reporters that the interpretation of that phrase is “subjective. It’s very clear that it’s subjective.”
A lobbyist for one of the liberal advocacy groups working on the nominations issue said that a Supreme Court vacancy itself might constitute an “extraordinary circumstance” since so much would be at stake.
Deal might unravel
One of the Republicans who signed the accord, Sen. Mike DeWine of Ohio, said that in the future, if one of the Republicans signatories thinks Democrats are using filibusters in what are not truly “extraordinary circumstances,” then the Republicans could vote for Frist’s rule change.
And Frist spokesman Bob Stevenson likewise emphasized that Frist might seek to put his proposed rule change to a vote if Democrats revert to filibustering. "The filibuster is now only going to be used in extraordinary circumstances and the 'nuclear option' remains a live option," Stevenson said.
But Frist, working with allied conservative groups ranging from the Family Research Council to the Judicial Confirmation Network, had invested many months of planning and advocacy to build support for a vote on changing the filibuster threshold.
In the end, there was no vote — and one could hear an inevitable sense of letdown in the voices of conservative activists.
It will be very difficult for First to rebuild the momentum for another effort to overcome Democratic filibusters.
“Everybody should be ashamed of this deal,” said former Frist aide Manuel Miranda, who heads the National Coalition to End Judicial Filibusters. “It dishonors the Constitution; it ignores the mandate of the 2004 election. It’s a horse trade of the worst kind. The White House has suffered a significant loss. The presidency is diminished as it relates to the Senate.”
But Sean Rushton, executive director of the Committee for Justice, which lobbied for Bush judicial nominees said the accord does make it clear that “the filibuster cannot become standardized as a normal procedure.”
He added, “If the filibuster is abused again we’ll be back where we are today.”
At least one Democrat, potential 2008 presidential contender, Sen. Russ Feingold of Wisconsin, expressed disappointment.
"Democrats should have stood together firmly against the bullying tactics of the Republican leadership abusing their power," said Feingold. "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."