Wednesday, May 25, 2005

Half Loaf vs. No Loaf.

Ronald Reagan once said if he can come away from the political table with half a loaf instead of none he was happy. With the filibuster deal I do believe we came with three-fourths of a loaf. Sandy, commented on my blog at the BBA that we get three justices instead of eight "do the math".

I think this analysis is rather short sighted and neglects the larger game at play here. I think Republicans are in a much better position then the Democrats are. Without getting too deep in the minutiae of the senate the filibuster is a rule and the constitution grants the senate the power to make its own rules for carrying on its affairs. The Constitution also gives the senate the power of advice and consent on judicial nominees. Nowhere, does the constitution spell out how the senate is to provide this advice and consent. Advice and consent has come to mean approval by floor vote and the rules dictate how matters come to a floor vote. The Democrats managed to prevent floor votes using the rules. The Republicans likewise have a manner in which to get around those rules.

In short the senate decides what advice and consent mean. I do not think it outlandish that the filibuster can be taken to be unconstitutional nor is it outlandish the filibuster is constitutional. How is that for fence sitting, in fact it makes sense since the Constitution sits
alongside myself on that fence. Certainly, the constitution emphasizes the need for majority votes when the senate or the congress make a decision and explicitly spell out the instances here something other than a simple majority is required. But this does not mean by the text a simple majority approval is what is meant by "advice and consent". Perhaps, if they wanted they could signal consent by having the majority leader put a lampshade on his head and do a dance.

Now, why do I think the GOP won this one? An important line shifted with this agreement. The line separating the radical from the mainstream just moved to the right, not that I believe the nominated judges are radical, a strident portion of the left does and they just got the heave-ho! So the Democrat Senators finally admitted the three justices in question are not radical as they were claiming for so long. This also throws the judgment of the Dems into question (or at least their honesty and shows who their lord is). They were radical before but not now? Not only do political geeks like us see that pronouncement plain as day so too do those who do not normally pay attention. This is like have a billboard with floodlights and flashing neon lights, if we would have gotten rid of the filibuster the Dems and their minions in the MSM would have been screaming "coup" on that same billboard. What do you like?

Now, what is going to happen when the President nominates a supreme court justice? We have three good justices from which to choose. Three justices that just set off PFAW, MoveOn, ACT and so on. However, after months of opposition and calling them extreme the Dem-7 just declared them not extreme.

Admittedly the justices left off the list are still a nagging problem and yes can be considered a victory for the Democrats. How did the two justices get selected for rejection? Someone somewhere thinks maybe it was a variation on spin the bottle. Clearly the most important three for the Conservative movement made it through.

Now, my colleagues on the right say we were in a position to get all of what we want and we failed therefore we lost. I say it again, this is pessimistic and short-sighted. My guess is we will see Janice, Priscilla, or Bill on the Supreme Court soon (though Miguel Estrada or Mitch McConnell may be also selected for that job).