This is an archive of the old Stones Cry Out site. For the current site, click here.

« Status Quo Preserved | Main | The New York Times: Seeking Your Trust »

May 24, 2005

Brilliant Political Move

I heard the news hours ago, read a few posts, contemplated, went to Home Depot and got some sand paper, then read some more. My initial assessment: The Memorandum of Understanding is a brilliant political move for the Republican Party.

I submit my opinion to SCO readers as a principled supporter of the Constitutional Option. Politics is rarely the friend of principle and tonight’s compromise is no exception to this maxim. I must view the compromise through the lense of pragmatism and what I see looks good for my party.

We may never know whether Frist had the votes; in fact, I think this compromise suggests that no one truly knew how the votes would fall. If Frist called for the vote and the rule change failed, he would look terribly weak and the party would face bitter division. If the rule was changed, Reid and the Democrats would look like helpless whiners and be forced to engage in petty procedural tactics to stall and obstruct further.

With this deal the Republicans are forced to concede a principled position – that all nominees sent to the floor should receive an up or down vote – but this is not a position overwhelmingly supported by Republicans as suggested by internal Republican Party polling in late April.

The Democrats, on the other hand, spent the last few years and a tremendous amount of political capital branding fine conservative jurists Priscilla R. Owen, Janice Rogers Brown and William H. Pryor Jr. as right-wing extremists. Borrowing from the language of the deal, they are by the Democrats’ own definition, the most “extraordinary” of Bush’s nominees.

Two judges will be sacrificed, William G. Myers III of Idaho and Henry Saad of Michigan, but I’m not clear if they are subject to the “extraordinary circumstances” rule. It would seem that they are not, but the rule would be applied to future nominees.

But who are these judges?

I have to admit, I have no clue. I’m willing to bet that most Americans have no clue either. Thanks to the Democrats, many Americans know Priscilla R. Owen, Janice Rogers Brown and William H. Pryor Jr. The very nominees that the obstructionists have worked so hard to convince America were scum of the earth will now get a vote on the floor of the United States Senate.

The bar has been set and it has been set very high. Any future Bush nominee, whether Circuit or Supreme, will have to be clearly more “extreme” than Owen, Brown, and Pryor. Senator Mike DeWine sent a signal that I hope will be echoed by other Senate Republicans that abuse of the “extraordinary circumstances” rules will not be tolerated. The Dems won’t have several years to frame a future Bush nominee, say a nominee to the Supreme Court, in this light.

Josh Micah Marshal is asking the right question: “Can this agreement really withstand the appointment of another hard right nominee?” I think not, especially when it will be virtually impossible to be more “hard right” than the nominees the Democrats just allowed to go to the floor for a vote.

Unless there is a hidden agreement to vote no on Owen, Brown, or Pryor, I’m inclined to think that tonight’s Memorandum of Understanding is a brilliant political move for the Republican Party.

UPDATE: Welcome Michelle Malkin and Fraters Libertas readers! I'd like to note that Jim Jewell and Mark Daniels agree with my assessment, but Mark Sides and Matt Stokes dissent.

Be sure to read Mark's two posts on the subject here and here.

UPDATE II: Jim finds wisdom in compromise as does Professor Bainbridge. (HT: Dilley Blog)

Posted by Rick at May 24, 2005 02:16 AM

Trackback Pings

Listed below are links to weblogs that reference Brilliant Political Move:

» REPUBLICANS BUCKLE from Michelle Malkin
Thanks to reader/blogger Greg Martin for sending this graphic that says it all: *** Related: - Breaking: Filibuster compromise - Patterico makes a pledge - Round-ups: Joe Gandelman, Pardon My English, Conservative Outpost - More Photoshop-inion from Sl... [Read More]

Tracked on May 24, 2005 11:25 AM

» "Moderate" Reps settle for three out of ten from The Unalienable Right
So the "moderate" Republicans - remember their names, McCain, DeWine, Snowe, Warner, Graham, Collins, and Chafee - have made a deal that achieves an up-or-down vote for three out of President Bush's ten filibustered nominees. Thirty percent, a stunnin... [Read More]

Tracked on May 24, 2005 01:27 PM

» A Pre-Nomination Approval Process: Who is changing the rules here? from Dilley Blog
Responses around the sphere: (Bad Move)Daily BlogsterMangled CatThe news has hit Exultate Justi especially hard as he has now given up politics and is currently commenting on the weather in Colorado.Clay CalhounBest Destiny(Good Move)Stones Cry Out Pro... [Read More]

Tracked on May 24, 2005 02:19 PM


I agree. Although we'll hear a lot about how this solves nothing, and about how the weak-kneed Republican leadership failed, it appears that the potential downsides of the deal are much greater for the Democrats. Although the Republicans may have to fight the same battles again, it is more likely that the Democrats will have to go along with an up/down vote for candidates that they would have otherwise threatened the filibuster. They will look disingenuous if candidates they filibuster meet the Owen/Brown/Pryor standard.

Probably a good deal for the Republicans, unless these three somehow lose in the full Senate.

Posted by: Jim Jewell at May 24, 2005 08:09 AM

Well, for our readers who think that the authors of Stones Cry Out are a unified block on all matters, you have now found that is not true. The deal is terrible and foolishly short-sighted on the behalf of the Republicans. It will last 6 to 9 months. It will solve absolutely nothing. A minority of the Sentate still gets to hold up Senate business whenever it decides it wants to. This deal does not change that. Matt and Jim are wrong, albeit well-intentioned. Sadly, it will take months to find that out, meanwhile more time will have been wasted.

Posted by: Mark Sides at May 24, 2005 08:22 AM

Actually, I messed up in the above comment. Rick wrote the post, not Matt. Sorry about the confusion. Also, I believe "Senate" only has one "t".


Posted by: Mark Sides at May 24, 2005 10:21 AM

I absolutely agree that this is a smart deal for Republicans and one which I have eagerly anticipated for weeks.

It's smart for both sides, really. It extricates the Democrats from a PR morass they could not win.

But for Republicans, whose position on the nuclear option meant that, at best, they couldn't lose (without necessarily winning), there are several decided advantages.

(1) It acknowledges reality. By the time people get to the US Senate, there's one thing they all do quite well: count. Savvy senators knew that the "nuclear option" didn't have the votes.

(2) This agreement allows an up or down vote on several bottled-up judicial nominations, establishing a precedent for future nominations by the President. The Republican agenda is therefore advanced.

(3) It has a wise, pragmatic sense of history and of the future. To have exercised the nuclear option would have felt good to many Republicans for a moment. But its implications for the future and its departure from the past would have haunted Republicans for decades to come.

During this confrontation, Bob Dole and others, while advocating an up or down vote for the President's judicial nominations, also counseled restraint in doing away with 200+ years of Senate tradition. (I know, the filibuster has rarely been used in debates over judicial nominations. And I personally would like to see the filibuster in all cases go the way of the do-do bird; it has almost always been used to thwart reform or the advancement of civil rights and is therefore a lamentable custom. But the fact is that the filibuster has been an available weapon for more than two centuries.) The reason for Dole's counsel: Republicans won't always be in power. When in the minority, they might want to use the filibuster to thwart, bottle up, or provide opportunity to present a case against, the nomination of a Democratic President of a Democratic jurist to a Democratic Congress.

It's wise politics to allow your opponent some shred of dignity so that in a later day, they will reciprocate. More than that, compromising now will give a future Republican minority options for dissent.

(4) It puts the onus on the Democrats. Having agreed to a compromise that calls for up or down votes on several upcoming nominations and having done so to facilitate doing the people's business, the Democrats will appear to be obstructionists and leave themselves no choice but to acquiesce to limits on debates over nominations in the near future.

As Dean Rusk put it during the Cuban Missile Crisis and the US received a communication from Nikita Krushchev backing away from the Soviet Union's hardline stance, "We were eyeball to eyeball and the other guy blinked." The Democrats blinked. Now, they'll have to live with the consequences.

A debt of gratitude is owed by the country and Republicans to people like Mike DeWine, John McCain, and John Warner. They've played an important role in this drama.

Posted by: Mark at May 24, 2005 10:27 AM

Ok, I guess you have all changed my mind. Given the similar implications, I have changed my mind on the Missouri Compromise as well. It saved the country for a few more years, so I guess it was a good deal. It was too bad about those African-Americans that were negatively affected by it; but, hey, what's the sense of worrying about human rights when we can compromise?

Posted by: Mark Sides at May 24, 2005 10:41 AM

Hiss and boo!

Posted by: Matt at May 24, 2005 11:24 AM

"The bar has been set and it has been set very high. Any future Bush nominee, whether Circuit or Supreme, will have to be clearly more “extreme” than Owen, Brown, and Pryor."

I just don't get this line of argument. It assumes logical consistency is important to the Dems. If this entire fiasco has shown us anything, it is that they have only one metric, and that is power. Ethics, rationality, consistency, principle and a sense of shame are only tools to be bent to their larger end. Do you really think the average person will look at the next filibustered victim and say, "wait a minute, they aren't even as conservative as..." Not a prayer. I wish I could agree with you but I don't.

Posted by: pep at May 24, 2005 02:25 PM

HEY cousin rick just wanted to tell you i am going into the ARMY well i am going to try to get in!

Posted by: Marie at May 24, 2005 04:07 PM

this is getting funny, reading comments from both sides-waa waa waa we didn't get our way. the one time politians do their job look out for america and extremeists left and right are outraged.what would the future consequences have been had either side really gotten their way at any time in our history? checks and balances are why america has survived without becoming either a socilist state or a facist one.

Posted by: KAHG at May 24, 2005 05:25 PM

By the way, thanks for linking to my post on this subject.

Posted by: Mark at May 25, 2005 10:29 AM

I have to say that I am a bit disappointed that the Republicans did not "pull the trigger." I was sort of looking forward to seeing the tactic backfire, much as the Republican strategy of wholesale blocking of judicial appointments during the Clinton administration has backfired. When the Republicans complained, the Democrats were able to turn around and say, "It was you that established this as an acceptable strategy." It was amazing to me that the Republicans would want to increase the power of the Chief Executive to force through highly partisan appointees, considering the narrowness of the margin in the last two elections. I thought that the protests of the Democrats had a definite "No, no, don't throw us in that briar patch" character.

Still, it seems that McCain was too savvy to let his party fall into the trap. He's a smart guy. The compromise benefits the Republicans in another way, too. The religious right is both the Republican Party's greatest strength and its greatest liability. They are an important voting block, but there are nearly as many people, many of them otherwise conservative, who are frightened of the influence of the religious right. Fortunately, the Republican Party is nearly the only game in town as far as the religious right is concerned, so the Republicans don't have to keep them all that happy to hang on to their votes. The best thing for the Republican Party is to make a big show of fighting the good fight on the religious right's hot-button issues, but not to win too often, as that would frighten off the secular conservatives.

The risk of the Nuclear Option to the Republican Party was that the Republican Party would lose any excuse for not packing the judiciary with the sort of extremist judges who would roll back abortion rights wholesale and intervene in cases like that of Terry Schiavo. This would frighten off the secular conservatives, and hand the next Presidential election to the Democrats--with the bonus of an increase in the power of the President to force through judicial nominees. With the compromise, the Republican's manage to get through enough religious right-friendly judges to mollify the Bible-thumpers, while still being able to blame those evil Democrats for their failure to bring in enough of them to really scare off the secular conservatives.

So I'm kind of sorry to see the Nuclear Option fail. Still, the compromise is probably the best thing for the country as a whole. While more a rules quirk than anything else, the filibuster has evolved to be an important check on the power of the President. The potential of the filibuster encourages the President to seek out judicial nominees who are at least marginally acceptable to more than a bare majority of the populace--which ultimately promotes popular confidence in the judiciary.

Posted by: tgibbs at May 25, 2005 06:00 PM