Here's the key thing, to me, the put-it-all-in-perspective thing, about the Gang of 14 agreement:

The judicial filibuster hasn't yet been ruled out of order. The Senate opposition still has that weapon in its arsenal for the Supreme Court fight.

Doesn't anybody else think that that's huge? There seemed no question that the filibuster was going to go down at the end of May, that Frist had enough votes (just) to see the rule change through. The Gang of 14 agreement headed him off. How is the situation any worse now, with Senate Democrats having retained the filibuster threat, than it would be if the judicial filibuster had already been shut down six weeks ago?

OK, there's one way we might be worse off: if the Gang of 14 agreement had rendered the filibuster alive but impotent in practice, whose merely theoretical availability made a kind of taunt, an object lesson about the fecklessness and impotence of the Democratic party. That's certainly how Lindsey Graham wants to spin the agreement (not to mention a number of disappointed leftists)—but he'll only get his way if the Democratic signatories are fool enough to believe that they've bound themselves to oppose any filibuster undertaken against an ideological extremist solely on ideological grounds. And though it never pays to underestimate a Democratic centrist's willingness to cave, it seems to me that the agreement's deliberately ill-defined language of "extraordinary circumstances," not to mention its concluding (and contextualizing) exhortation to Bush about the need to consult with the Senate on judicial appointments, suggests that all the signatories, Democrats included, were looking to give themselves maximum wiggle room for just such a moment as we now face—were looking, in other words, to do exactly the opposite of binding themselves in any way to any particular understanding of their deal. I see no suggestion anywhere, Steno Sue notwithstanding, that the Gang of 14 Democrats are getting ready to let Lindsey Graham put them in harness. So on that score—and given how smooth an operator Harry Reid has proven to be to this point—I'm not going to worry until events force me to.

[Not to mention that if you've got Joe Biden, for Chrissakes, threatening a filibuster on ideological grounds—well, what does that tell you about how much resolve there must be in the ranks of the Senate Democrats? I take as much heart from that as from anything I've heard so far.]

Otherwise: I say it again, how are we worse off with the filibuster than without it? Discount it however you will, the threat means that there's at least a chance that the Supreme Court pick will end up being some non-destructive rightist, someone with at least a smidgen of intellectual honesty and an acceptable judicial temperament. That's the best we can hope for, and we'd have no room even to hope for that if Frist had already gone nuclear back in May.

The hard fact is, the Supreme Court is lost at this point; it was lost as of November 2004, and everything now is just the working-out of the details. I don't expect a non-destructive choice from Bush. I don't think the Republican Gang of 14ers will have the stones to force it from him, however much a lame duck he's become; the baying of the Dobsonian hounds is too loud and too insistent for any of those guys to be able to think straight. And Bush is hardly going to become magically less vindictive, less stubborn, now that his failures, like a multitude of ghostly Banquos, are beginning to crowd around him. No, it's going to be bad, and the filibuster won't be able to change that.

But the fight will further erode Bush's position, and the Republican party's with it. Which is the main thing. If the Bushies were smart, they'd find themselves a centrist and duck this contest—but they're not that smart, and their luck has run out: there's nothing they can do now anyway to avoid paying off the theocrats. Let Bush nominate a wingnut, an anti-Roe: let them violate Senate rules, let the Republicans tear up the Gang of 14 agreement, to kill a filibuster for the wingnut's sake: let the Senate erupt: it will be a teaching opportunity. Now, when the stakes are at their highest and attention at its maximum, there will be nothing to keep the country from witnessing just how tyrannous and unprincipled, how far from the mainstream, the Partei and the Cheney administration really are. The goal, after all—other than to start taking our government back in 2006 and 2008—is impeachment, and the worse the Republicans show themselves, the more Bush bleeds support away, the better our chances at making it happen. I firmly expect Bush to leave office (however he goes) as the most vilified president since Nixon, and I think the Supreme Court battle is going to play a significant role in the process.

posted by michael  3:39:55 PM  
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Digby reads this article in today's Washington Post (" Filibuster Deal Puts Democrats In a Bind") as confirming his suspicions about the worse-than-uselessness of May's "Gang of 14" agreement that halted Bill Frist's attempt to unleash the nuclear option on judicial filibusters.

Democrats' hopes of blocking a staunchly conservative Supreme Court nominee on ideological grounds could be seriously undermined by the six-week-old bipartisan deal on judicial nominees, key senators said yesterday.

With President Bush expected to name a successor to Justice Sandra Day O'Connor next week, liberals are laying the groundwork to challenge the nominee if he or she leans solidly to the right on affirmative action, abortion and other contentious issues. But even if they can show that the nominee has sharply held views on matters that divide many Americans, some of the 14 senators who crafted the May 23 compromise appear poised to prevent that strategy from blocking confirmation to the high court, according to numerous interviews.

The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character. ...

Under the "Gang of 14" accord, the seven Republican signers agreed to deny Majority Leader Bill Frist (R-Tenn.) the votes he needed to carry out his threat to bar judicial filibusters by changing Senate rules. The seven are implicitly released from the deal if the Democratic signers renege on their end. Yesterday, key players suggested the seven Democrats will automatically be in default if they contend a nominee's ideological views constitute "extraordinary circumstances" that would justify a filibuster.

Sen. Lindsey O. Graham (R-S.C.), one of the 14 signers, noted that the accord allowed the confirmation of three Bush appellate court nominees so conservative that Democrats had successfully filibustered them for years: Janice Rogers Brown, William H. Pryor Jr. and Priscilla R. Owen. Because Democrats accepted them under the deal, Graham said on the Fox program, it is clear that ideological differences will not justify a filibuster of a Supreme Court nominee. ...

Sen. Ben Nelson (Neb.), a leader of the seven Democratic signers, largely concurred. Nelson "would agree that ideology is not an 'extraordinary circumstance' unless you get to the extreme of either side," his spokesman, David DiMartino, said in an interview.

The bar has been fatally lowered on the confirmation of "wignut freakshows" as a consequence of the Gang of 14 agreement, Digby laments. "I'm not sure what it will take to make Democrats understand that making a deal with Republicans is akin to stabbing themselves in the back. It never fails." And I say: hold up a minute there, Hoss, the game ain't over. There's much less to this article than meets the eye—especially when you realize that it's bylined to none other than the WaPo's champion GOP stooge, Steno Sue Schmidt.

Here's a question: how many times do you have to make some variation on the phrase "key senators" to convince readers you're serving up something other than the thinnest sort of thin gruel? (And let's not forget to add "numerous interviews" for good measure.) Schmidt's doing her best to obscure the fact that this piece of crap—judged A1-worthy, inexplicably—is nothing but a tired, tendentious rehash of the Sunday talk shows: on the evidence presented in the article, those "numerous interviews" (unless you're allowed to mark watching somebody being interviewed on TV to your credit) boil down to exactly one, and that not with a Senator but with a Senator's flunky, Ben Nelson's spokesman David DiMartino. And of all the names being tossed around in the article, exactly two—Graham and Nelson—are actual Gang of 14 signatories. (Which, by my math, leaves twelve senators whose opinions are currently unaccounted for—isn't that something of a majority of the group?)

Claiming, as Schmidt does, that Lindsey Graham is "positioned to dissolve the [Gang of 14] deal and thwart" the filibuster that Joe Biden is promising (in a scenario where Bush nominates Janice Brown for the SCOTUS vacancy) is nothing but hopeful rightist spin retailed as independent analysis. As ever, Schmidt's allowing herself to be used—and allowing the news columns of the Post to be used, not incidentally—in a transparent GOP effort to pre-empt and control the terms of the forthcoming debate. But in spite of all the huffing and blowing here about her prodigious reporting effort Schmidt doesn't know jack. Apparently, we're supposed to believe that Nelson's (spokesman's) comment indicates that Graham will have Democratic cover from within the Gang of 14 sufficient to abrogate the anti-nuke agreement if the filibuster threat is made good: though even the mushy Nelson statement reserves a considerable amount of territory when it allows "the extreme of either side" as an exception to the rule that ideology is off limits.

What's more, Graham is saying nothing remotely new: he started putting his chicken liver on display almost before the ink was dry on his Gang of 14 signature, insisting that the agreement made for just the "bind" on ideological questions that Schmidt has helpfully "demonstrated" with her "reporting" in today's article. Well, I'd say that very much remains to be seen. Given how craven Graham has proven in the aftermath—and considering that another "key member" of the Gang of 14 is John McCain, whose history of wetting his pants whenever Bush comes to shove is amply documented—I may have, shall we say, overinterpreted when I suggested that the anti-nuclear agreement gave the moderates the whip hand in requiring a consensus candidate from Bush. (When are any of these guys going to wake up to the fact that, barring some Osama ex machina, there's nothing to check the Cheney administration's slide toward utter repudiation?) But, even in the worst case, it's impossible from Steno Sue's article to say what the balance of forces in the nuclear truce is at this point, much less how a filibuster threat will actually play out. One of those Beltway productions, in other words, that leaves you knowing less when you've read it than you did going in—no doubt just the sort of accomplishment that makes a hack like Sue Schmidt proud.

posted by michael  12:39:49 PM  
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