Peter Rubin on Filibuster Deal:

I suspect that there's not much about the coming Supreme Court confirmation battle on which Peter Rubin and I will agree, but the fact that the filibuster deal will have little binding force on the nomination circus seems to be one.

Commenting on the same Washington Post story I referenced this morning, Peter Rubin argues on the ACS Blog that the impending Supreme Court nomination showdown makes clear that the filibuster deal was an "enormous win for the Democrats":

The Post's analysis, though, does not withstand scrutiny. Everyone knew at the time the compromise was struck that "extraordinary circumstances" were not defined; and everyone knew there might be a dispute about whether those words included, for example, replacing a moderate Justice with a very conservative one who would tip the Court's ideological balance with respect to certain fundamental constitutional values. * * * This leaves Democratic members of the Gang of 14 to decide for themselves what they believe qualifies as extraordinary circumstances, and to act as their consciences dictate with respect to the filibuster.

Hmmm, sounds familiar.

Rubin argues that the deal is a net winner for the Democrats, because it enabled them to preserve the filibuster until a more fortuitous time, in that his view is that the public will not stand for "changing the rules in the middle of the game" when it comes to the Supreme Court, and that the time for Republicans to strike would have been when the issue surrounded lower-scrutiny appellate court nominees.

He could be right, and I suspect neither of us have a great sense of how this would all play out across the country if the constitutional/nuclear option resurfaces, but my personal intuition runs the other way. My intuition is that to the extent that most people care, they will be more prone to seeing a debate over the filibuster and procedural gamesmanship as inside the beltway silliness. I think that the American public generally are not "proceduralists" when it comes to evaluating government activity and don't care too much about this stuff. Witness the hostility toward Gingrich in the 90s government shutdown, the popularity of guys like Arnie and Jesse Ventura in promoting themselves as a problem-solvers impatient with procedural obstacles, and the longstanding of Perot-types who oppose "gridlock" (otherwise known as bicameralism and separation of powers) and special interests. So, notwithstanding the possible fairness appeal of "don't change the rules in the middle of the game," my personal intuition is that a line of attack that tries to defend the filibuster in the context of a refusal to hold an up or down vote on a Supreme Court nominee strikes me as a loser for the Democrats.

In part this is because, as I noted some time back, the longstanding American tradition has been that where the filibuster has been abused to systematically frustrate the majority (such as with anti-lynching or civil rights legislation), rather than being used simply to promote true extended debate by the minority, my reading of the history has been that the response has been to change the filibuster rules to prevent future such occurrences.

Majority vote, up or down, has a very deep claim on the American imagination.

So, leaving aside whether it is actually an unfair changing of the rules in the middle of the game to invoke the constituitonal/nuclear option in the event of a filibuster of a Supreme Court nominee, my intuition is that is an argument that won't win with the public if it comes to that. It seems hard for me to see how it could be a winner for the Democrats to go to the public with the issue that a new Supreme Court term should start one Justice down the confirmation of a successor should be delayed because they oppose an up-or-down vote on a nominee.

I think the proceduralist arguments were losers when the Republicans made them when the Democrats controlled the Senate (after the Jeffords switch) and I suspect that they would be losers for the Democrats now. For better or worse, I suspect that the public has little patience for these issues when they seem to stand in the way of getting things done.

And while we're at it maybe we can come up with a new neutral term for whatever the "___ option" is.


Doh--A Commenter reminds me that O'Connor's resignation is effective as of the confirmation of her successor, so there wouldn't be a vacancy, just a delay in the confirmation of a successor. I apologize and have changed the post text accordingly.

Jake (mail):
My personal favorite (but not exactly neutral) terminology is to refer to it as the Byrd option, or, less politely, as "flipping the Byrd."
7.5.2005 2:28pm
Anonymous jim (www):
How about the "no need to mind the minority option"?
7.5.2005 2:32pm
7.5.2005 2:42pm
Bryan DB:
I don't know that I'd base my argument "Americans are not proceduralists" on Arnie and Jesse. Both of them may have come in with a bang on their promises to change the world, but they are both in danger of leaving with a whimper. Jesse's gone, and Arnie's bluster is leaving him in dire straits. In the end, it seems like "the people" talk a good game, but revert to form when crunch time comes.
7.5.2005 3:02pm
I'm not exactly sure how the filibuster deal could be styled a win for either side. The question whether the filibuster will continue has only been offset to the future, but the Republicans still got a few appointments while losing some.
7.5.2005 3:04pm
I think it depends on the reason for the filibuster. If Bush were to nominate someone who has openly come out for overturning Roe v. Wade, such as Judge Garza, and the Democrats were to filibuster on that basis, I think the public opinion debate would pretty much focus on the abortion issue, rather than on whether Fortas was really filibustered in 1968 or whatever.

If Bush nominates someone who is a reliable conservative, but more mushy on the specific issues, I think it would be harder to crystallize support for a filibuster. Which takes us back to the point that the "deal" means nothing concrete, and that the Democrats will filibuster if they think they can get away with it, and the Republicans will invoke the nuclear option if they think they can get away with it.
7.5.2005 3:08pm
jgshapiro (mail):
The filibuster deal just postponed the showdown. The Republicans were betting that it would be easier to get rid of it during a SCOTUS showdown, while the Democrats were betting that it would be harder. The answer is in the polls, and probably can't be measured effectively ahead of time, so it's anyone's guess who is right.
7.5.2005 3:18pm
Paul Horwitz (mail):
I've argued elsewhere that a simple rearrangement of letters will give us an anagram that accurately describes the state of certainty with respect to the many constitutional and procedural issues raised by this gambit: the "unclear" option.
7.5.2005 3:36pm
Mark Buehner (mail) (www):
I think Steve is on the right track, the winner in this will be whoever frames the issue the most pragmatically.

If Bush appoints someone that knows how to play the Roe V Wade game (refuses to answer hypotheticals), and especially if its one of the judges that has already been approved recently, Dems are going to lose and lose badly. All things being equal, it will be seen as the Democrats breaking the agreement (which would be true). I dont think a republican president nominating a conservative judge can be viewed as extraordinary. It has happened before in this country once or twice.
7.5.2005 4:12pm
David A. Smith (mail):
Call it the "vote option." Filibuster as it is being used here is simply a device to avoid having to vote.
7.5.2005 4:16pm
Wurlitzer (mail):
How about, "the 51% solution"?
7.5.2005 4:30pm
Mike G. in San Diego (mail):
How about calling it the "put up or shut up" option?
7.5.2005 4:36pm
drew (mail):
Well my proposal would be the "judicial fillibuster removal opotion" mostly because I like calling things by accurate names, but it doesn't quite roll off the tongue like the other two names.

As far as the fillibuster deal, as far as I could tell it was a narrow tactical decision by 14 senators who were loathe to remove the option for judicial fillibusters. Neither the republican nor democratic majorities agreed, both would have preffered a showdown. The common wisdom is that the democrats "won" mostly because the common wisdom was also that the republicans would have won the showdown (at least in the senate if not in the court of public opinion. As such it seems proper to talk about what the ramifications of the fillibuster deal are, rather than whether the deal will hold. In my opinion none of the principles expected the deal to hold past its signing, though some may have believed that it could lay the ground work for future deals should a similarly sticky situation arise.
7.5.2005 5:06pm
PeteRR (mail):
I can see the commercial now:

"The filibuster has a long tradition, a tradition of blocking anti-lynching and civil rights legislation. Call your Senator and ask him why he supports a procedure that was used to sustain Jim Crow and keep African-Americans from enjoying the full benefits of being a US citizen."

With the visuals being Bull Connor, Selma, firehoses, a black man hanging from a tree.

Especially effective if Janice Brown is the nominee.
7.5.2005 5:33pm
Greedy Clerk (mail):
Majority vote, up or down, has a very deep claim on the American imagination.

Huh?!?! Yes, Todd, "up or down votes" is part of the American dream. . . .

The filibuster has a long tradition, a tradition of blocking anti-lynching and civil rights legislation. Call your Senator and ask him why he supports a procedure that was used to sustain Jim Crow and keep African-Americans from enjoying the full benefits of being a US citizen

Yes, that works great. Why don't we have commercials in the South opposing any legislation by simply saying that "legislation has a long history of being used to sustain Jim Crow and keep African-Americans from enjoying the full benefits of being a U.S. citizen." Umm, I don't think black people are so naive as to fall for your little gimmick, and the obvious respect you have for African-Americans is revealed by this comment: "Especially effective if Janice Brown is the nominee." I think most African-Americans can think for themselves and will not be swayed by the simple fact that an extremist nominee happens to have dark skin. Moreover, opposition to now-Judge Brown's nomination was higher on average in the black community. And Justice Thomas is the most powerful black person in this country, but he is also one of the most disrespected by the black community.

7.5.2005 5:39pm
Greedy Clerk (mail):
It seems hard for me to see how it could be a winner for the Democrats to go to the public with the issue that a new Supreme Court term should start one Justice down because they oppose an up-or-down vote on a nominee.

Uhh, Todd, perhaps you should have read Justice O'Connor's letter of resignation. She said her resignation would be effective upon confirmation of a new Justice. So that argument ain't going to fly --- it seems like every day you get something dead wrong on the facts here. . . . .

7.5.2005 5:42pm
Clayton E. Cramer (mail) (www):
Greedy Clerk said:
Yes, that works great. Why don't we have commercials in the South opposing any legislation by simply saying that "legislation has a long history of being used to sustain Jim Crow and keep African-Americans from enjoying the full benefits of being a U.S. citizen."
Because legislation finally destroyed Jim Crow (through the Civil Rights Act of 1964) and granting African-Americans full citizenship (the Fourteenth and Fifteenth Amendments).

Look, I can understand why Democrats wouldn't want anyone reminding voters (especially black voters) which party worked aggressively to keep Jim Crow in place, and to prevent antilynching legislation--especially because a former Klansman is still a prominent Democratic Senator. But isn't it a bit dishonest to pretend that the filibuster has a long and honorable tradition comparable to representative government?
7.5.2005 6:05pm
big dirigible (mail) (www):
Is something obvious, like "majority rule option", really all that bad?

I wouldn't try for "simple majority rule option" as it would be too close to NewSpeak - we all realize that there ain't nothing simple in Congress.
7.5.2005 6:16pm
I can't believe anyone would seriously make the argument that a procedural device is inherently good or evil. Like the power to make comments on a blog, you can use it, or you can abuse it.
7.5.2005 6:16pm
jgshapiro (mail):
Greedy Clerk:

Putting aside your characterization of anti-filibuster commercials as a "gimmick," and further putting aside your nastiness in replying to various comments, your unstated premise that these commercials would be addressed primarily to black voters is wrong.

Appeals to civil rights issues are not just made (or even primarily made) to black voters. They are also made to moderate whites who care about such issues. Trent Lott was not thrown out of his leadership position post-Thurmond comments because of a fear that the GOP would lose 9% of the black vote, but because of a fear it would lose a much higher percentage of moderate white votes for seeming to be supportive of, or ambivalent to racial segregation.

Likewise, a filibuster isn't dangerous to the Dems just because some blacks or hispanics could be persuaded to view it as racist, but because the moderate whites who comprise much of the swing voters may view it as unfair when white judges with similar records have traditionally (e.g., prior to 2000) received an up or down vote.
7.5.2005 6:41pm
unhyphenatedconservative (mail):
Greedy Clerk: "And Justice Thomas is the most powerful black person in this country, but he is also one of the most disrespected by the black community."

Is "the black community" defined as average blacks or the leadership of the NAACP? If it is the former, please provide some stats to back up the statement.
7.5.2005 7:09pm
steveh2 (mail):
Just curious: If there is no vacancy, because there are nine justices on the Court and O'Connor has not actually resigned, i.e., is still a justice, how can Bush appoint another one?
7.5.2005 8:59pm
Before we spitshine our replacements for the name "nuclear option" shouldn't we check to be sure we have to? The oldest cite of it I can find is a 2002 Free Republic post quoting Arlen Specter using it. If the Republicans coined the term, it seems a little squealish to change it out of fairness to them.

If conservatives decide to shoot themselves in the foot during a duel, that's no reason to disarm the Democrats.

And yes, no doubt, the term is vague, misleading, and unfair to the Senate majority, but it's their own albatross, and they can wear it.
7.6.2005 12:18am
elliottg (mail):
Someone observed that O'Connor loves to be in control. She may have some thoughts about the nuclear option. Those thoughts even if she only suggested that she would voice them after the confirmation battle was done could influence several Republicans.
7.6.2005 2:34am
Victor Weber (mail):
I think that the filibuster comprimise wasn't a win for anyone. It was just a way out of a fight that no one wanted any longer. The Democrats didn't want to look like manic freaks, overheated about marginally important judicial nominations. The Republicans didn't want to look like a drooling power-mad political machine, running over centuries of tradition in a blunt-fisted power grab.

I think the best way for this to play out would be for the Republicans to call the Democrats bluff. Sen. Frist should actually make the Dems filibuster. Make them stand up and talk until they can't stand it anymore. It would be dramatic and it would grab everyone's attention. Maybe the public would actually realize what the fight is about and register its opinion. I'm not sure how it would come out, but the Dems would look like they were pulling a stunt, reading recipes on the Senate floor and all that, which would give the Republicans an advantage going in.
7.6.2005 5:03am
Substance of the filibuster debate aside, the phrase "nuclear option" was coined by Trent Lott and used for years by Republicans as standard shorthand until a Frank Luntz type told them it polled badly. Josh Marshall has really nailed this one; here's his best summary post:

TPM on Etymology of "Nuclear Option"

I'm mystified by the success of the spin machine in recasting this word as a Democratic smear. And awed by the dime on which the great mass of conservative politicians and media types turned in changing their usage, over the course of about a week earlier this year.

Serious question, Todd (and others): why do we need to come up with a new term? Can't you imagine the howls of laughter if liberal politicians suddenly started insisting en masse that the phrase "War on Terror" stacks the political deck in the GOP's favor by building in erroneous assumptions about our current foreign policy choices? And then started demanding that the cable network crawls use a more neutral term?

I could cast about for a better analogy, but you take the point: we've got a term, it's not a perfect term, but it's the standard term. The fact that Republicans actually invented and popularized it only emphasizes how totally bizarre (in any sense except the nakedly political) their present objections are.
7.6.2005 6:55am
Man, am I horrible with with computers. I tried doing the fancy URL link thing but appear to have failed miserably. Since blogger won't let me post words longer than 60 characters, put these together in your navigation bar to get the Marshall post on "nuclear option":

And actually, his immediately preceding post is also very good:

(By the way, for those who react to heated rhetoric by disengaging, Marshall got exceptionally exercised about these language manipulation efforts. Excuse his passion and check out his facts.)
7.6.2005 7:08am
Eh Nonymous (mail) (www):
While I agree with Julian / TPM, I also love the suggestions in this thread thus far.

Put up or shut up (concise, Bush-like)
No need to mind the minority (snarky, accurate)
winner take all (divisive, accurate)
judicial filibuster removal (as if that's as far as the rule-changing would go)
and of course, the "unclear" option, which, as I just suggested, it would be.

I don't know much about rule changes by the Senate; if there's a Finding by the President of the Senate that filibusters are unconsitutional as applied to (in his interpretation) obstruct the performance of the duties implied in Article II, section 2 ("with Advice and Consent") -- does that imply anything about other filibusters? Ones blocking the budget bill, for example? Would it be unconstitutional to filibuster discussion of a declaration of war?

Also, I still feel weird about the Finding that would have to be made. Something like: "Whereas, Advice and Consent means the Senate must not be consulted (except its majority leader) and that it must give its speedy consent to any nominee, and Whereas, the jerks have abused the Senate procedural rules that the majority have instituted and accepted to govern their own behavior, and Whereas... etc."
7.6.2005 12:45pm