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Jesus Christ, the Republicans are frigging morons

It's a little late to chime in on the Senate "compromise" regarding judicial nominees, but I still feel the need to vent a bit. I've just looked over the terms of the agreement worked out by the seven Democrats and seven Republicans, and I think someone needs to notify the Capitol Police. The Democrats just royally raped the Republicans.

Under the terms of the deal, the Republicans agree to not threaten to change Senate rules and block filibusters of judicial nominees. In return, the Democrats agree to immediately allow votes on three judges, and refrain from filibustering other nominees except in "extraordinary circumstances."

It's no wonder that most lawyers in the Senate are Democrats. That agreement has loopholes big enough to fly the Death Star through. (Forgive me; I just saw Revenge Of The Sith Sunday.)

Let's look at what each side gave up. The Republicans gave a concrete pledge to not change the rules regarding filibusters for as long as the agreement is in effect. That's a hard pledge, with minimal room for wiggling and evading and finding "nuances." They've effectively given up their most potent weapon.

Now, you'd think that would require the Democrats to make an even greater sacrifice. After all, the Republicans won the elections last November, and are in the majority. Further, with Vice President Dick Cheney holding the Senate Presidency (the only specific duty assigned to the Vice President by the Constitution), they have an even greater edge. They are bargaining from the position of strength.

But if you thought that, you'd be as much of a frigging moron as the Republicans in the Senate. They let the Democrats get away with promising to eschew the filibuster except in "extraordinary circumstances."

Now, what constitutes those "extraordinary circumstances?" Why, whatever the Democrats feel it does. They specifically and deliberately did not define what that means. And since it could mean anything, it means exactly nothing.

I've already heard one activist (I wish I could have caught her name) quoted on the radio saying that any Supreme Court nomination, by definition, would constitute "extraordinary circumstances." And by God, she's right.

I'm no lawyer, I'm no Senator, I'm no great student of government, but without even trying I worked up what I think constitutes a good definition of what does NOT constitute "extraordinary circumstances." I freely admit I stole the basic idea from Tom Clancy's "Executive Orders," when President Jack Ryan is weighing nominees for the recently-wiped-out Supreme Court.

I would have insisted that nominees who meet certain criteria shall not constitute "extraordinary circumstances." Those criteria would be:

1) Several years' experience on the bench at a lower level. 2) No extensive history of having their rulings overturned by higher courts. 3) No rulings overturned on fundamental Constitutional issues.

Now, the actual numbers of those items could be negotiated, but I think the basic outline would have served the Republicans far better than relying on "the good faith" of Senators.

It's times like these that I'm relieved that I'm not a Republican.

I have to congratulate the Democrats. They've achieved a stunning victory with this agreement, one that cost them nothing, and handcuffed the Republicans. It was one of the finest political plays I've ever seen.

And tomorrow I think I'll cruise by an animal shelter. I'll ask them to save me the leftovers from the next batch of neuterings. Then I'll be sending them to the GOP in the Senate. Even severed dog and cat testes would be an improvement from their current gelded state.


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Comments (24)

What is to stop the Republi... (Below threshold)

What is to stop the Republicans from terminating the agreement after the three judges are voted on?

Nothing, I think.

On the other hand, once those three are approved, that's a done deal.

So the Republicans may come out ahead after all. They can abide by the agreement as long as it suits their purposes, and they can terminate it, if necessary, down the road.

As Vader said in ESB, "I'm altering our agreement. Pray I don't alter it further." :-)

A Washington Post ... (Below threshold)

A Washington Post editorial a couple weeks ago actually cut to the heart of this compromise. That elastic "extraordinary circumstances" language is also a noose that can hang the Democrats.

The agreement, remember, leaves it to each signatory's discretion as to what constitutes "extraordinary circumstances." Which means that if seven Republicans think that the circumstances are not so extraordinary ... they are free to pull the nuclear trigger.

--|PW|--

That agreement has looph... (Below threshold)
KBiel:

That agreement has loopholes big enough to fly the Death Star through. (Forgive me; I just saw Revenge Of The Sith Sunday.)

Which, coincidentally, has plot holes you could fly the Death Star through. Though McCain's huge ego might not make it.

Hmmmm."What is to ... (Below threshold)
ed:

Hmmmm.

"What is to stop the Republicans from terminating the agreement after the three judges are voted on?"

Because there is no termination clause. I.e. there is no way for this agreement to end until the 110th Congress is seated, in January 2007. There is no other way. Technically this agreement cannot even be "broken". It may not be honored, but it will remain in effect until January of 2007.

"Which means that if seven Republicans think that the circumstances are not so extraordinary ... they are free to pull the nuclear trigger."

Which means you didn't actually read the entire MoU.

Here it is:
"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."

I.e. each senator has his/her own discretion in FILIBUSTERING. It does not specify that anyone can invoke ANY rules changes whatsoever. At any time. For any reason. Prior to the 110th Congress.

Honestly now. I like you people but you're doing the same thing a lot of other people are doing. You're reading things into the MoU that are simply not there. Additionally you're taking the position that this MoU doesn't have any force if the signatories don't want to be held to this agreement. This is bunk. There is a reason why the Democrats got this in writing.

Do you think the Democrats couldn't have done this entire nonsense with just a handshake? Such deals are made, and broken, all the time. But this is in writing, and published too, so it's very very public. So when the Democrats invoke it to screw the Republicans, what are they going to do?

Shrug their shoulders and tell the Democrats to go F*** themselves? These are the *centrists* after all. That won't happen and if you think it will, you're dreaming.

I agree with GaijinBiker, t... (Below threshold)

I agree with GaijinBiker, there is nothing that stops the GOP from going nuclear if the Dems start up their crap. I heard Frist say as much on Hannity today. Although I wish they would have nuked and gotten it over with.

And let's also consider thi... (Below threshold)
pgg:

And let's also consider this: it took a Democrat less than 24 hours to renege on the agreement! As far as I'm concerned, it's null and void right now.

Specifically, the text of the deal states that all signatories -
"...have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit)."

And the 14 signatories are:
Democrats
Robert Byrd (West Virginia)
Daniel Inouye (Hawaii)
Mary Landrieu (Louisiana)
Joseph Lieberman (Connecticut)
Ben Nelson (Nebraska)
Mark Pryor (Arkansas)
Ken Salazar (Colorado)

Republicans
Lincoln Chafee (Rhode Island)
Susan Collins (Maine)
Mike DeWine (Ohio)
Lindsey Graham (South Carolina)
John McCain (Arizona)
John Warner (Virginia)
Olympia Snowe (Maine)

The vote to end debate on Priscilla Owen fell 81-18 in favor of cloture. That's 99 Senators, leaving 1 senator who didn't vote:

The single non-voting Senator?
Not Voting - 1
Inouye (D-HI)

OK - deal's off. Bring on the Byrd Option.

ed, please explain to me wh... (Below threshold)

ed, please explain to me why you believe this agreement, in writing as it is, in "enforceable," and by whom? Even the contract lawyers and litigators on the right who are pillorying this agreement allow that the agreement is "political, moral, non-legal" (http://beldar.blogs.com/beldarblog/) -- and, even if one side claims the other is vilolating the agreement, what are they going to do, run into Court and ask the judiciary to ORDER a Senator to VOTE in a particular fashion? I think they'd have a serious seperation of powers problem.

The Memorandum of Understanding is a non-binding agreement, not an enforceable contract -- and I would argue further that, even if it met the requirements of a contract (mutuality, consideration, etc.), it would constitute a contract that is void as against public policy. I would argue that, because Senators take an oath of office to uphold and defend the Constitution of the United States, their agreement to forebear from taking an action that they deem to be consistent with that responsibility, in exchange for the other side's promise not to do something that is in violation of it, is unenforceable. An analogy would be Senator AB agreeing not to vote for impeachent of a President in the face of evidence of his perjury in exchange for Senator BC's promise not to refer allegations of Sen. AB's obstruction of justice to the Justice Department.

You don't seriously think that either side of this MoU would be afraid of being beaten over the head with the language of this MoU if they decide to tear it up, do you?

What I can't understand is that last week Reid was offering the same committment to Frist in exchange for votes on FIVE judges, not three. Now the centrists cut the same deal for THREE? What changed?

wavemaker - what r... (Below threshold)
pgg:

wavemaker -

what really changed was the negotiating parties.

At first it was Frist and Reid.

Yesterday it was McCain, GOP backstabber extraordinaire, sticking and twisting again, undercutting his party to serve his gargantuan ego.

Props to GaijinBiker for us... (Below threshold)

Props to GaijinBiker for using one of the cooler Vader lines in the Original Trilogy.

In my opinion, Frist's presidential hopes vaporized because of this. Not his fault entirely, but he was left looking like he had no control over the Senators in his party. McCain burned him big time.

If I'm Frist, I pray to God the Democrats filibuster a nomination very soon, because that gives him the opening to go nuclear, save some face with the base, and give McCain and his band of flunkies the finger. Yeah, the media will tear him apart, but that was going to happen if he nuked judicial filibusters this afternoon anyway.

I also take some comfort in the fact that McCain's '08 ambitions are also toast because of the MoU. Good luck in primary season, John. You lost the conservative base forever, and you can't get the nomination without them. McCain better enjoy the adulation he's receiving from the media right now, because in the political sense, this was a phyrric victory for him.

Apologies for misspelling "... (Below threshold)

Apologies for misspelling "Pyrrhic victory", Jay.

God, that's embarrassing....

Why should "each sig... (Below threshold)

Why should "each signatory" apply only to half, i.e., the seven Democrat signatories?
Clearly, by saying "each signatory", the MoU allows the Republicans to make their own determination of when the Democrats are filibustering inappropriately and thus frees them to go for the nuke option.

Bottom line: No one really knows, yet, if this was a good deal or not. It depends on the way it plays out. For better or worse, it got some movement on the nominees, and clears things out quite a bit for being able to put Owen or Brown on the Supreme Court without a filibuster (or the Dems take a serious PR hit for themselves and guarantee the nuke option being triggered).

Anything else is up in the air.

That being said, I'm disgusted with McCain for yet another self-aggrandizing grandstand play that undercuts the Senate Majority leader. I'd like to see him voted out.

I agree with what Nathan sa... (Below threshold)
fatman:

I agree with what Nathan said about McCain ^^. Unfortunately, I also agree with what Ed said ^^.


The only way to get represenatives and senators with backbones is to enact TERM LIMITS NOW!

If the opportunity to make a career out of politics is removed, then maybe we'll get a better class of politicians. We certainly can't do any worse.

Hmmmm."ed, please ... (Below threshold)
ed:

Hmmmm.

"ed, please explain to me why you believe this agreement, in writing as it is, in "enforceable," and by whom?"

Because senators operate within the strictures and boundries of the senate rules. Not necessarily within the law.

"he Memorandum of Understanding is a non-binding agreement, not an enforceable contract"

And where did you read that?

"Clearly, by saying "each signatory", the MoU allows the Republicans to make their own determination of when the Democrats are filibustering inappropriately and thus frees them to go for the nuke option."

Because the agreement doesn't state that. You must read it in explicit terms, not implicit. The agreement explicitly prevents the Republicans from supporting the "nuclear" option. It explicitly allows both Republicans and Democrats to invoke the filibuster if they consider it to be "extraordinary circumstances".

The agreement does not allow Republicans to go for the "nuclear" option if they consider it to be "extraordinary circumstances". It's just not in the writing.

I admit that I am already b... (Below threshold)
Carrick Talmadge:

I admit that I am already bored with this thread and more than a little puzzled with all of the vitriol that gets tossed about over it. It's an obvious win for the Republicans, they get three candidates they wouldn't have gotten without the unmitigated disaster of employing the nuclear option. And it really doesn't pin them down in the future if the Democrat Seven don't continue to vote for cloture on "reasonable candidates". In other words, the usual "something for nothing" scenario. Really the only way that the Democrats could have won would have been to force the Republicans to use the nuclear option and use it quickly.

Yawn. All that said, I now return to pondering Danica Patrick and her ways. Life is good. Cheers.

Good idea Jay and I hope yo... (Below threshold)

Good idea Jay and I hope you do it.

Cindy

I'll tell you one thing, Se... (Below threshold)
Jim:

I'll tell you one thing, Senator John "Darling of the NY Times" McCain is finished as far as running in 2008 for the presidency. The GOP base will allow Hillary to win just to spite him. I know in 2008, if it's McCain v. Hillary Rotten Clinton, I'm sitting out the election.

ed, I say it is not an enfo... (Below threshold)

ed, I say it is not an enforceable contract because of the language used in the MoU and the lack of consideration (lawful consideration) and my opinion that such a contract would be unenforceable based upon seperation of powers and such a contract being void as against public policy.

Read the MoU language and it uses words like "spirit" and "should" -- the agreement is based upon "mutual trust and confidence." It lacks any of the recognized indicia of binding mutual obligations.

I also agree that "each party" using his own discretion means EACH AND EVERY party, and therefore if one of the Repubs' judgment is that extreme circumstances do not exist, the agreement can be cancelled.

The Republicans got screwed... (Below threshold)
Just Me:

The Republicans got screwed on this one, and they willing bent over to take it.

Although I see this agreement maybe lasting through the appellate appointments, but we will see how long it lasts when the first Supreme nominee comes a long.

McCain has just shot committed political suicide as far as a presidential run is concerned. Sure he could do well among independants, but he should have learned in the last election that you have to get the support of the party base, if you want to get the nomination, and this little agreement on top of everything else has pretty much cemented the base's dislike for McCain.

Frist has proven to me through all this, that I absolutely don't want him to be the president. If he can't figure out how to grow some balls and lead the senate, I don't want him making decisions about terrorists or the real nukes. I am sure he is a nice man, and that he may be good to work with, but his leadership skills are sorely lacking, and this is a time when the GOP needs to have a leader who will take some hits in the name of what is right, instead of trying to hard to make the other guy like you.

Hmmmm."I also agre... (Below threshold)
ed:

Hmmmm.

"I also agree that "each party" using his own discretion means EACH AND EVERY party, and therefore if one of the Repubs' judgment is that extreme circumstances do not exist, the agreement can be cancelled."

I understand your point of view but I have to point out a couple things. First off the senate has the power to regulate itself. This is in the Constitution and isn't given to any other body. Not even the Supreme Court has the power to tell the senate what to do or how to do it. However within the senate are the operating rules, written and unwritten, that goven how it works.

It's one thing to violate an unwritten agreement, the senate is a gentlemen's club but with a rather vicious twist. However the Democrats specifically had this document written out, signed and then published. This is not something the Republican 7 are going to be able to dismiss easily.

And I'm going to point out again that the exact wording of the agreement precludes ending it for any reason. If that's what they think should be in the agreement, then why isn't it in the exact wording of the agreement. This thing was supposedly written over the course of two weeks. It's not impossible to find a decent lawyer in Washington within that time frame.

The wording of the agreement is extremely specific. Each senator has the right to filibuster based on his/her own personal judgement. The stipulation that no judicial nomination rules changes are allowed until the 110th Congress however has no conditions, stipulations or qualifications.

The Republican 7 might *think* they have that out. But the precise wording of the agreement precludes this. Which means that something doesn't jive here. Either they know they don't have an out, and thus are lying. Or they think they have an out, and were completely duped.

Not a good scenario in either situation.

*shrug* hey you might be right. I'd like to think you are, but the wording of the agreement is so precise, the only conclusion I can take is that any imagined "outs" are just that. Imaginary.

But we'll see.

"Frist has proven to me through all this, that I absolutely don't want him to be the president."

The most amazing thing about all this, and one definitely not anticipated by the Democrats, is that I have a new found appreciation for Tom Delay!!!

Can you imagine this? After all that effort in a smear campaign what the Democrats in the senate have done is cement Tom Delay's approval by the conservative base. I'm pretty sure that Mr. Delay could strut down Pennsylvania Ave buck naked with a rainbow wig on his head and in stiletto heels, and nobody would give a damn.

It's the only amusing thing about all this.

"I have a new found appreci... (Below threshold)
Master of None:

"I have a new found appreciation for Tom Delay!!!"

He isn't called "The Hammer" for nothing. What we need in the Senate is somebody we can call "The Anvil".

An MoU is never an enforcea... (Below threshold)

An MoU is never an enforceable contract. Unless the majority of Senators votes to make this MoU formally a part of Senate rules, it binds only those who signed it, and if any signatory breaks it, re-read my first sentence.

I was speaking with a lawye... (Below threshold)

I was speaking with a lawyer this morning who was formally a staff counsel for the Senate Rules Committee. From his mouth:

"Any agreement between one legislator and another promising a particular vote is an unenforceable contract, void as against public policy."

Unenforceable at law, anyway -- but not at politics.

And ed, I really don't find much precision at all in the wording. I find it deliberately vague, as in, "you won't agree for it to say what I want, and I won't agree for it to say what you want, so let's make it vague enough that we can both claim it says what we respectively want." Similar to the Schiavo statute's directive regarding injunctive relief.

Jay TeaI agree wit... (Below threshold)

Jay Tea

I agree with your reaction to the filibuster deal ("Jesus Christ, the Republicans are frigging morons"), but you appear to be taking it out on all the Republicans. There's little that most of them can do. The senators to blame are the 7 republicans and 7 democrats who formed the "Gang of 14." 48 of the 55 republican senators made no deal, but they don't have the votes to use the "nuclear option" without some of the Gang of 14.

Take a look at my reaction to the deal at www.halway.com/blog/gangof14.html

A. Hadley

I love your comments and an... (Below threshold)
TJ Jackson:

I love your comments and anlysis. I am going to be a daily reader.

I do hope you have moonbat control. I hate it when I see trolls who have strayed over from Kos Kids or the Democratic Underground with nothing to contribute.




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