July 5, 2005
Private: Guest Blogger: Now it's Clear: The Filibuster Deal Was an Enormous Win for the Democrats
by Peter Rubin, Professor of Law, Georgetown University Law Center
In its lead story, Monday's Washington Post argues that the recent filibuster deal puts Democrats in a bind. In that compromise, the so-called Gang of 14 - seven Democratic and seven Republican Senators - agreed the filibuster would be used against judicial nominees only under undefined and unagreed-upon "extraordinary circumstances." Several Republican members of the group have said that ideology cannot be an extraordinary circumstance. The Post concludes that this puts the Democrats in a bind: If Democratic members of the group decide to support a filibuster based on extreme conservative ideology, the Republicans, the Post argues, will simply abandon the deal and vote with their leadership to end the use of the filibuster.
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.
The reason that the filibuster deal was an enormous win for the Democrats - even at the price of confirming to the Courts of Appeals some judges they thought were anathema - is because it meant that the filibuster would remain in place for the anticipated Supreme Court nomination that is now upon us. The deal places the Republican leadership in a box, and not Democrats, because eliminating the filibuster after someone has been nominated to the Supreme Court in order to assure that person's confirmation will smack of changing the rules in the middle of the game. And the American public, for whom this issue was beneath the radar when the question involved only nominations to lower courts, may well not tolerate that.
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. Because of the new political reality created by a pending Supreme Court nomination, if even a few of these Democrats join their colleagues in a filibuster against a nominee, the Republican leadership, and for that matter any Republican members of the compromise group who think these Senators' actions were not contemplated by the compromise, will have a very, very difficult time changing the rules to prevent that from effectively ending the nomination.