Judging the filibuster deal

Activists from both the left and right say averting the nuclear option won't end their fight for the judges they want.

Published May 26, 2005 2:05AM (EDT)

Richard Viguerie believes Republicans had the thing won -- and then they blinked. Viguerie, the conservative direct mail maven, thinks the GOP would have scraped up just enough votes to eliminate the filibuster on judicial nominations this week, setting in motion a right-wing revolution in the federal courts. "This vote was a great opportunity to get control of all three branches of government," Viguerie says. "And then the moderate and liberal Republicans took it away from us."

Viguerie echoes many activists on the right, who are certain that Republicans lost when 14 senators from both parties agreed to compromise on the nuclear option. At the same time, many activists on the left, such as MoveOn.org and People for the American Way, are certain that Democrats won. To both sides, though, the deal was surrounded by question marks; nobody was certain that it would achieve any real solution to the problem of judicial nominations. In some ways, Monday's deal changed nothing at all.

The extreme right's reaction to the compromise came swiftly. Shortly after the deal was announced, James Dobson, founder of Focus on the Family, described it as "a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats." Former presidential candidate Gary Bauer called the Republican compromisers "sellouts," and the Family Research Council's Tony Perkins decreed the deal "ignoble."

Meanwhile Eli Pariser, MoveOn.org's executive director, characterized the deal "as a big blow to Bill Frist and Dobson and the radicals who wanted to pull the trigger today." MoveOn's effort to preserve the filibuster was its largest campaign since last year's election; the group says that its members placed more than 100,000 calls to lawmakers to urge opposition to the nuclear option and organized almost 200 simultaneous rallies around the country. Although MoveOn had never explicitly supported a compromise, its efforts, Pariser said, had created a "countervailing force" that "held Democrats together and created political space for the compromise that emerged." In a "Victory Webcast" held by MoveOn on Tuesday evening, Harry Reid, the Democrats' leader in the Senate, endorsed Pariser's view. "I am so prouid to say that the people of MoveOn have worked with us and made a difference," he said.

Pariser and others on the left were not completely satisfied with the deal -- notably the senators' decision to allow floor votes on three far-right judges, Priscilla Owen, Janice Rogers Brown and William Pryor. Ralph Neas, president of the People for the American Way Foundation, one of the leading pro-filibuster groups on the left, stressed that his foundation would continue to oppose those judges.

Still, liberal groups saw much to be happy about. Keeping the filibuster will certainly come in handy when vacancies open up on the Supreme Court with George W. Bush in the White House. The compromise worked out between senators allows Democrats to use the filibuster under "extraordinary circumstances," and Neas said he could easily conceive of such a circumstance -- if President Bush nominates someone "in the mold of Clarence Thomas or Antonin Scalia to the Supreme Court." How could the president avoid creating an extraordinary case? Nominate "Sandra Day O'Connor for chief justice," Neas said, referring to the Supreme Court's swingiest conservative.

Nan Aron, president of Alliance for Justice, a liberal group that had also fought hard to keep the filibuster, agreed. If Bush's Supreme Court nominee "is anyone like any of the circuit court nominees, then extraordinary circumstances could easily be invoked," Aron said.

This fight over what sort of judge would be deemed "extraordinary" is shaping up as the next great battle. Conservative groups said that even right-wing judges could not be called extraordinary and that Democrats should never need to filibuster any judges. "Short of the president nominating Saddam Hussein," said Sean Rushton, executive director of the conservative Committee for Justice, "I'm not sure there'll be a case that's extraordinary. I'm not sure there's really ever been a judge that has risen to the level of extraordinary." Rushton added that Democrats, by agreeing to live with judges as conservative as Owen, Brown and Pryor, were implicitly consenting not to filibuster similar judges for the Supreme Court. After all, if Democrats don't consider Pryor "extraordinary," a man who once called Roe vs. Wade "the worst abomination of constitutional law in our history," would anyone be extraordinary?

Another definition of "extraordinary circumstances" was suggested by Grover Norquist, the influential anti-tax Republican activist who also supported the nuclear option. A nomination can legitimately be called extraordinary, Norquist says, if Sen. Mike DeWine thinks it's extraordinary. Dewine, an Ohio Republican, is one of the seven Republicans who joined the compromise deal. However, he has suggested that if the Democrats filibuster unnecessarily, he will go back to supporting the nuclear option. Such a threat may make the compromise "self-policing," Norquist says, with Republicans always holding the option of permanently taking away the Democrats' right to filibuster judges.

Critics of the deal, though, weren't satisfied with self-policing. Many said the only consolation now would come in the voting booth. Viguerie promised hell for Republicans who supported the compromise and Norquist said that one Republican in particular, South Carolina Sen. Lindsey Graham, was most vulnerable. "The Christian right's pissed as hell," he said. "Who are they going to go after? The guy who lives in South Carolina," where everyone goes to church.

Liberal groups, too, said they were aiming for a political fight -- an epic one, as soon as vacancies arise on the Supreme Court. "When that battle comes, Republicans are in much less favorable terrain than they were on appellate court judges that theoretically nobody cared about," Pariser said. If the fight over the filibuster comes during a Supreme Court confirmation debate, a debate that the whole country is watching, "I believe that's a disagreement you can take to the public and we can win on," Pariser added. "I think a judge who thinks minimum wage is unconstitutional is extraordinary, and that's a P.R. battle that I don't think Republicans want to have."

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

MORE FROM Farhad Manjoo

Related Topics ------------------------------------------