Before the so-called gang of 14 struck a deal to avert -- or at least postpone -- the nuclear option, partisans on both sides of the fight argued over which numbers were the right ones to use when looking at Senate confirmation of George W. Bush's judges. Democrats said that they'd allowed up-or-down votes on 205 nominees and had blocked only 10. Republicans said, however, that the 10 judges Democrats blocked were all nominees to the appellate court -- meaning they'd blocked 10 of the 35 judges Bush had appointed to that bench one step down from the Supremes.
The deal struck Monday night is susceptible to that same kind of math. Some look at the compromise and conclude that the Democrats have caved in almost completely, allowing votes on five of the seven judges who were still being blocked before the deal was struck. But there's another way to look at the math, one that's a little more sympathetic to what Sens. Robert Byrd and Ben Nelson and the other Democrats got out of the Republicans. Here it is:
By the time the senators were meeting to find a compromise, two of the seven judges, Sixth Circuit nominees Richard Allen Griffin and David W. McKeague, were already all but confirmed. While Griffin and McKeague hardly have perfect liberal credentials -- what Bush judge would? -- they had been blocked previously on largely nonideological grounds as a result of partisan tit-for-tat that began when Republicans blocked some of Bill Clinton's nominees to the same court. Even before the Senate negotiators began meeting in earnest last week, Sen. Harry Reid had told Sen. Bill Frist that Democrats were ready to move beyond that fight and let Griffin and McKeague go the floor for up-or-down votes.
As a result, the negotiators were really working with five nominees: Priscilla Owen, Janice Rogers Brown, William Pryor, Henry Saad and William Myers. Under the deal they struck, Republicans get up-or-down votes on the first three, and the Democrats are free to filibuster the last two. Framed that way, the deal looks just about right. Republicans hold a 55-44-1 majority in the Senate, and they get three of the five judges in the deal confirmed. It's hard to see how the Democrats could have done much better, right?
Maybe, and the maybe comes in two parts. First, Democrats have to be asking themselves: If we had called Frist's bluff and forced him to go ahead with the nuclear option Tuesday, how would the vote have come out? Reid carried around a card all last week with the names of wavering Republicans written on it. Three were pretty firmly anti-nuclear, and it's at least possible that he could have picked up three more. Listening to them speak over the last few days, it sure seems as if Sens. John McCain, Lincoln Chafee, Olympia Snowe, Susan Collins, John Warner and maybe Arlen Specter would have voted no on the nuclear option if they had had to make a choice. If at least six of them would have bolted from Frist if push had come to shove, then the deal is a great loss for the Democrats: They gave up something -- the ability to block Pryor, Owen and Rogers -- to get something they could have gotten anyway.
The second maybe is about the future. Everyone involved acknowledges that the deal is a fragile one, but we won't know just how fragile until the Senate takes up the first extremist judge whose confirmation plans aren't spelled out in the agreement. There are a couple of appellate court judges coming through the pipeline; if they reach the Senate floor, Democrats may view them as the sort of "extraordinary circumstances" judges worthy of filibustering. Republicans will almost certainly disagree, and the deal could explode right then and there.
But a wiser play for the Democrats might be to wait. Letting a few extremists onto the federal appellate court isn't the end of the world. There's a limit to the damage they can do; federal appellate judges sit in panels of three, and their decisions are subject to review by en banc panels in their own circuits and by the Supreme Court, too. What the Democrats got out of the deal Monday night was the right to filibuster an extremist nominee to the Supreme Court. If Bush picks an unacceptable nominee to replace Chief Justice William Rehnquist -- or, even more important, Sandra Day O'Connor -- the deal gives Democrats the right to filibuster.
Will Republicans claim that Bush's Supreme Court nominee, no matter how extreme, isn't really an "extraordinary circumstances" pick and that any filibuster is therefore a breach of the deal, freeing them to go nuclear all over again? Probably. But that's not all bad for Democrats. If all the Democrats have done with their deal is postpone the nuclear option debate until the time when a Supreme Court nominee is before the Senate, then they've still accomplished something pretty important. It's one thing for Republicans to try to change the rules in the middle of the game when the public isn't paying much attention. Let them try it again in the white-hot light of the Supreme Court confirmation process, when abortion rights and voting rights and even the constitutional underpinnings of the New Deal are hanging in the balance. The public will be paying much closer attention then, and Frist and the Christian right may have a much harder time keeping their senatorial soldiers in line.