As anyone who reads lefty blogs knows by now, there’s been a great deal of hand-wringing over whether the Deal that averted the nucular option was a good idea for the Democrats. I want to weigh in on one aspect of this. Some are worried that Janice Rogers Brown is as extreme a nominee as Bush is likely to be able to find, so if she is guaranteed a vote, how can Democrats credibly argue that anyone else constitutes the "extraordinary circumstances" that justify a filibuster? In other words, if she doesn’t constitute "extraordinary circumstances," who would?
In my view, this concern is based upon a misreading of the agreement. To me, nothing in the agreement sets Brown up as a non-"extraordinary circumstance" (nor, for that matter, do I think it sets up Myers and Saad as "extraordinary circumstances"). All the deal does is commit the signatories to vote for cloture on Brown – it doesn’t characterize her nomination in any respect.
Look at the structure of the original document carefully. The deal has two distinct parts, Part I ("Commitments on Pending Judicial Nominations") and Part II ("Commitments for Future Nominations"). In Part I, the document simply says that the 14 signatories are committed to voting for cloture on Brown, Owen, and Pryor, and that they are not committed on Myers or Saad. In Part II, it says that with respect to "future nominations," judicial filibusters should only be undertaken in "extraordinary circumstances."
What the deal does not say is that Brown, Owen, or Pryor wouldn’t constitute "extraordinary circumstances." The deal in fact says nothing at all about what "extraordinary circumstances" are, other than that each Senator is expected to use "his or her own discretion and judgment in determining whether such circumstances exist." To me, it is a perfectly defensible reading of the agreement – actually, I think it’s the best reading – to say that the commitment to vote for cloture on certain pending nominees simply has nothing to do with the "extraordinary circumstances" standard applicable to future nominations. After all, the former is in Part I of the agreement, while the latter is in Part II.
And don’t you believe for a second that this is a hypertechnical, legalistic reading that the people drafting the deal weren’t aware of – every word of this deal, including the headings and subheadings, was hashed out by these Senators and their counsel and staffs over weeks of difficult negotiations. I cannot imagine that this point would have been lost on anyone involved (if it was, all of their lawyers should be fired).
In short: the notion that Janice Rogers Brown or Priscilla Owen or William Pryor somehow "sets the bar" for "extraordinary circumstances" is a misinterpretation of the agreement. "Extraordinary circumstances" will be defined only when one or more of the signatories to the agreement decides to vote against cloture on a judicial nomination other than Myers or Saad. And we will know if this deal can hold together when we see how the Republican signatories react to that definition of "extraordinary circumstances."
In other news, Think Progress reports that Frist has said that he intends to seek cloture on William Myers (who has already been reported out of the Judiciary Committee). If this is true, it’s a quick way of testing some of the agreement’s parameters as well as the resolve of its signatories. Also, and perhaps even more interestingly, the Hill reports Sen. Lindsey Graham (R-SC) as indicating that some (unidentified) nominees would be rejected in an up-or-down vote. That would be quite remarkable. Brown seems to me the most likely candidate, although maybe Myers or Saad would be rejected too.
