Half the time you say we shouldn't worry about the MOU because it's not "enforceable" and the other half you're saying that it binds the Dems to allow a floor vote on putting JRB on the Supreme Court. Amazingly, you're wrong on both counts.

The MOU is politically enforceable. When the Dems say that the moderates explicitly recognized their power to filibuster in extraordinary circumstances, they'll be right. When they say that the moderates agreed not to change the rules in the 109th congress -- no matter what -- they'll be right. The NY Times and the Washington Post and ABC and NBC will all agree and CBS will present a holograph of John McCain saying "I explicitly recognize your right to filibuster Judge Brown if that draft-dodging president should be so extreme as to nominate her to the Supreme Court."

And when they say that allowing a vote on JRB for the circuit court -- where she is bound by precedent, where the Supreme Court is there to overrule her, where she can't overturn Roe or impose a theocracy and where the precedential effects of her own rulings are limited to the circuit -- is different from an appointment to the Supreme Court, they'll be right, too. And when they say that appointing such an extremist to the Supreme Court is so extraordinary that a filibuster is required, all their friends will agree, too.

In the end, this is all about the politics. Politically, the MOU gives the Dems cover for anything they want to do, including filibustering the president's appointments to the Supreme Court and then trying to ride that into the mid-terms.

So, here's my prediction: Because of this deal, no GWB appointee will take a seat on the Supreme Court before January, 2007, regardless of how soon a spot opens up. [NB: I'm crediting GWB with not being willing to nominate a centrist acceptable to the Dems.]

It doesn't bind anyone to anything. That's why 14 moderates agreed. When he nominates a Justice and the Democrats filibuster they lose the Republican moderates and the filibuster.

OJ:

Right...when you read the agreement, it seems to allow wiggle room for the GOP mods to back off the "no filibuster" agreement should the Dems overplay their hand -- as Ramesh Ponnuru noted in "The Corner" after taking a closer look. Even if that wasn't the intention, the only thing that matters is how the 7 GOP senators read their obligations under the provisions.

Meanwhile, we've got at least three judges all primed for the top spot if this deal comes apart in the near future, which it very well could. So we come out ahead.

Meanwhile, some people are concerned because the Democrats are celebrating their "victory." Why does this matter? Considering the last four years, isn't this a sign that we're about to roll them?

They also won on NCLB, FBI, etc. The more they "win" the worse shape they're in.

Yep, check out this letter.

Let 'em have their delusions.

The only potential problem I can think of is that if the Democrats break the agreement and filibuster everybody else who comes down the pike, the media will say that's okay because it was part of the agreement. If the seven Republicans abandon the agreement and the nuclear option is brought back to the table, the MSM will hammer them for "breaking their word." That might be enough to keep the seven senators on the reservation.

However, the liberal media doesn't rule the roost anymore, and the conservative blogosphere will be steadfast in pointing out the agreement's wiggle room that I mentioned earlier. I suspect this would've been a much more substantial problem 10 years ago then it will be today, should it even happen.

Matt - I don't know how you find wiggle room in that agreement. Only the Democrats have wiggle room; the Republicans have a clear commitment.

Ramesh Ponnuru is smoking something. You can't claim the Democrats are violating the "spirit" when they're complying with the explicit letter of an agreement that you negotiated, read, and signed: "Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."

So as long as the Dems use their own discretion or judgment in deciding whether or not to filibuster, Republicans have no recourse.

Matt - Of course the scenario in your last post is very likely - and with good reason, for the 7 Dems do not break the agreement in filibustering all nominees but the 3 appellate judges, while the 7 Reps would be breaking the agreement by changing Senate rules.

The political costs of breaking the agreement may be diminished by the public's expectation that politicians always break promises, but that can't be a happy position for the Reps.

I think GWB has to push conservative policy positions the next year and a half, using the mistreatment of his judges as grounds for getting a better deal on other matters.

OJ: If, as you say, they couldn't get 50 votes to get rid of the filibuster when only us whackos are paying attention, they'll never get 50 in the middle of a Supreme Court nomination fight.

Mat: Our big argument in this fight was that filibustering judicial nominees was never appropriate. The MOU explicitly recognizes that there are circumstances in which it is appropriate. So that argument has been abandoned. What are those circumstances? They are extraordinary, but each senator much decide for himself and can't be second guessed. Can the filibuster rules be changes? In return for the Dems agreeing to let the Reps cave on whether filibusters are ever appropriate, the Reps also caved by guaranteeing no change in the rules in this congress.

Now, it is true that, if the moderates Reps grow spines in the middle of a borking with the MSM playing up to them about what statesmen they are and how they put the good of the country ahead of mere partisonship and said no to the forces of religious extremism, then they can vote for a rules change. Other than sheer faith, what possible reason do we have to believe that they are suddenly going to grow spines?

This is an agreement that only a moderate could love.

pj:

In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress [...]

That "in light of" will do quite nicely for wiggle room. Meanwhile, "each nominee" means the Republicans as well as the Democrats. So if the Republicans conclude that the Democrats are filibustering in unextraordinary circumstances, they defenestrate the agreement and start over.

The two sides will interpret the agreement's provisions differently. It's not legally binding. The press will pound the GOP if it breaks down, but so what? They do that anyway.

Brown is to the right of the Ayatollah, and David is crying because she's not guaranteed a Supreme Court lounge chair. This just makes me wanna cry, too.

This deal means that one wing-nut after another will get a lifetime pass to live off my taxes as an appeals court judge. And you guys are still whining. Why don't we just install Billy Graham as Absolute Theocrat? Would that make you happy?

The press will pound the GOP if it breaks down

The point is that that is where the moderates always cave.

David Cohen:

See above response to pj and also check out Ponnuru's take. My interpretation is that there's more than enough nebulous language in this pact to justify the reintroduction of the nuclear option.

As OJ noted, Senator DeWine was already talking yesterday night about how excessive Democratic filibustering could force the GOP's hand. Perhaps these seven senators won't buck the MSM, but the Democrats can't be sure of that -- party-line pressure is the "x" factor. Considering that people around the political world are already interpreting the agreement's "no nuclear option" provision as being reliant upon the "no excessive filibustering" proviso, the Democrats must be aware that too much mischief on their part risks retaliation.

Those of you who like this deal really need to study Casey's comments. In his internet life, at least, Casey has always come across as a reasonable and moderate center-left kind of guy; the kind of citizen we all know and respect in real life. And he thinks that Owens, Brown and Pryor are theocratically inclined wing-nuts. All three were passed by the ABA as well-qualified, all have experience and a paper trail and all three have faced the voters (Brown got confirmed with 84% of the vote in California, for crying out loud) and Casey, nice responsible guy that he is, probably hasn't read a single one of their opinions and is convinced that they should be kept off the Court by any means possible.

We have lost the politics here. Republican Senators have guaranteed that perfectly unexceptional mainstream conservatives judges can be filibustered to keep them off the Supreme Court, and some very smart conservatives are cheering them on. It's amazing.

Casey Abell:

"We're comin' to take you away, ha ha..." ;-)

Mat: excessive Democratic filibustering

In other words, the Dems have been given permission to filibuster at least some of the President's judicial nominees, including to the Supreme Court. Geez, you and OJ are convincing me that this is worse than I originally thought.

David Cohen:

Well, in all fairness, Brown admitted that Lochner v. New York had no Constitutional basis but said she supported it anyway. I thought that was passing strange for a conservative judge.

But, besides, all three of these individuals are now on major courts with Brown quite possibly preparing for a SCOTUS seat in the near future. You think the Democrats are going to filibuster a black woman -- this time with the entire country watching? You think the GOP will sit back and let them? Especially when the agreement provides an 'out'?

Besides, by the time she comes up for a nomination (I expect Estrada to go first upon Rehnquist's upcoming retirement), the 109th Congress may be history and the agreement totally negated.

Casey - If the only judges we can trust to apply the Constitution are right-wing wing-nuts, give me nine right-wing wing-nuts for the Supreme Court. If moderates want to sit on the Supreme Court, let them learn how to apply the law.

Matt:

Estrada did not make any friends at the White House. I have heard that after he pulled his name down, he made some negative comments about the WH's level of support for his nomination that got back to GWB. Maybe true, maybe not, but there were some early noises about the possibility of his becoming Solicitor General when Ted Olson resigned, but those rumors were quickly squelched-- by the White House.

David Cohen:

I'm quite positive that if they try this with a Supreme Court nominee the whole thing will unravel.

Again, if the Dems go too far we push back. Compromise sucks, but that's the price we pay for having so many squishees on our side. Just because we have 55 Republicans doesn't mean we have 55 conservatives, and we have to deal with that depressing fact. Robert Conquest's Second Law of Politics ("Any organization not explicitly right-wing sooner or later becomes left wing.") works for people too, and is almost as immutable as any scientific law. So we do the best we can.

Dan:

I can't find the article, but I read something a few days ago pointing out that Estrada has made hardly any public appearances or voiced his opinion on any contentious issue beyond a basic support for the judges being held in Senatorial limbo. In other words, he appears to be avoiding controversy in preparation for a SCOTUS shot.

I'm not a big Estrada fan, so I hope I'm wrong, but one administration official said that everything points towards Estrada as the next nominee, assuming Rehnquist retires next month as rumored.

Matt - I don't get it. If you think the moderates are planning to break the agreement if the Dems filibuster, then why did they sign it? Your predicted position is the one they repudiated when they signed the agreement.

I'm pleased to see you and others taking this line, because maybe it will encourage them to break the argument (which I would like to see). But it doesn't seem likely to happen.

pj:

Because they wanted at least three GOP judges in place.

Again, in reading the agreement I don't think they effectively repudiated anything. I originally thought they had until I read the text.

Estrada withdrew--he could have stuck it out.

Matt,

You could be right, but I am repeating what I was told after the speculation about him being named Solicitor General-- who is commonly called "the 10th Justice" and would be an ideal springboard for the Supreme Court-- was shot down so quickly.

I am a big fan of his, so I hope I am wrong.

David:

McCain got the three theocrats through.

OJ:

You have a link to that? I must've missed that story somehow.

Dan:

I should revise what I said. I like Estrada as a person and admire how he was born into grinding poverty but nevertheless made something of himself. I'm not sure he's a great SCOTUS candidate, though. The wariness many conservative groups have towards him and his reported vacillations on certain issues are red flags. I don't want another Souter.

Matt - If he folds under the pressure of a confirmation fight, how much would he fold as a Supreme Court nominee? His withdrawal shows that either (a) he prefers money to public service, which is fine but disqualifies him for public service, or (b) he can't stand to be on the bad side of the liberal legal community, in which case he's not someone a conservative should nominate. If he wanted to be a Supreme Court justice, he should have toughed it out.

pj:

They break them if the Republicans don't think the circumstance extraordinary.

pj:

A commitment enforcable by whom?

Matt:

http://www.pbs.org/newshour/bb/congress/july-dec03/estrada_09-04.html

Everybody:

I means Gonzalez, not Estrada!

(slapping forehead)

pj:

Now that I'm clear on who the hell we're talking about...I agree with you. Estrada couldn't handle the pressure, but thankfully he's not the guy I was thinking of!

"Our big argument in this fight was that filibustering judicial nominees was never appropriate. The MOU explicitly recognizes that there are circumstances in which it is appropriate."

Yes, but it is also clear that mere ideology is not an extreme circumstance. I read a speech by JRB a while ago. (unfortunately I did not save the URL). She is Hard Core. I think she is more extreme than I am, and that is saying something. If she is not an extreme circumstance, no ideology could be.

The only interpretation of extreme circumstance that makes any sense in this context is Abe Fortas.

I would not worry about Estrada or Gonzales for SCOTUS right now. The first post up will be Rhenquists and I would expect somebody like McConnell or Roberts. If Sandy Baby quits then a woman would be appropriate -- Edith Jones perhaps.

My bet is that the Hispanic and JRB are the third and fourth choices, if we can get lucky and have God call John Paul Stevens home, or maybe Souter gets mugged again.

Robert: I hope you're right, but that's not my reading of the MOU and, from what they've said, it's not what either Republican or Democratic senators think it means, either.

As luck would have it, I'm watching Corzine on CSPAN and he's saying that his understanding is that the nuclear option is off the table and that the filibuster is not restricted to personal or ethical objections.

David:

Won't he be surprised...

He's not even party to the agreement.

Nothing is different today than it was last week, except that Brown, Owens, Pryor are now approved, signed, sealed and delivered as Judges, and the Democrats have caved. Whoever is appointed to replace Rehnquist will face the same rules of the game that were in place last week.

The 7 republicans have NOT under any reading of the agreement promised to not vote for the nuclear option if they individually determine that Democrats are filibustering in a fashion that displeases them.

H: Here's a difference. A week ago, the Republicans were arguing that filibustering a president's judicial nominee on grounds of ideology was completely inappropriate, and a extra-constitutional power grab by the minority party.

The week the Republicans are saying, "Go right ahead and filibuster on ideological grounds. That's your right and we can't second-guess it. Just don't do it too much."

OJ: You mean the vague, unenforceable agreement that is suddenly going to be strictly enforced to the letter by those newly brave and wise moderates Lincoln Chaffee and Olympia Snow?

Let them do it and watch us dropkick 'em.

Rehnquist is gone in a month. Then it's goodbye.

Matt:

Glad your confusion has cleared. Estrada is one of the truly good guys.

pj:

Estrada was in limbo at his firm, and he does have a wife and kids. As DC lawyers go, he is no where near the top of the heap compensation wise. He practices in the Appellate section of a good sized firm that is headquartered in LA, and, though it might strike you as strange, those sections are very often marginal economically-- in a downturn, attorneys in such sections are among the earliest let go.

You might want to take look at Byron York's article:
http://www.nationalreview.com/york/york090403c.asp

The Rhenquist replacement will not spur a fight because he will not change the line-up. Its Sandy Baby's replacement, if she goes.

David:

Yes, that one. Who cares what the governor of NJ thinks about it?

D.C. could be in permanent battle mode if Rehnquist, O'Connor, Stevens, and Ginsburg all leave.

David:

I think you overstate the 'new' acceptance of the filibuster just a bit much. The 6 heretics and their arch-heretic leader were never comfortable with voting to drop it, even if just stipulated for judicial nominations. My guess is that the 14 signatories will cling to it as long as possible, and then it will suddenly be non-operative (like budget resolutions). And if Frist can't handle the PR battle, then let George Allen do it. Also, as Pat wrote on another thread, if McCain really wants to be President, all he has to do is charge into the next filibuster with guns blazing, and second the rules change. He has enough cover now to change his mind on it.

oj - It's enforcable the same way all politicians' promises are -- by the shame the politician would feel in breaking it, and by the loss of voter support that comes with being a promise-breaker.