A couple of Washington Post writers think that the bipartisan filibuster deal struck six weeks ago will make it difficult for the Democrats to stop a conservative Bush nominee for the seat vacated by Sandra Day O'Connor:
The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character.
The distinction is crucial because Democrats want to force Bush to pick a centrist, not a staunch conservative as many activist groups on the political right desire. Holding only 44 of the Senate's 100 seats, Democrats have no way to block a Republican-backed nominee without employing a filibuster, which takes 60 votes to stop.
GOP leaders, sensing the Democrats' bind, expressed confidence yesterday that the Senate will confirm Bush's eventual nominee, no matter how ideologically rigid. "I think there is every expectation, every reason to believe that there will be no successful filibuster," Majority Whip Mitch McConnell (R-Ky.) said on "Fox News Sunday."
Under the "Gang of 14" accord, the seven Republican signers agreed to deny Majority Leader Bill Frist (R-Tenn.) the votes he needed to carry out his threat to bar judicial filibusters by changing Senate rules. The seven are implicitly released from the deal if the Democratic signers renege on their end. Yesterday, key players suggested the seven Democrats will automatically be in default if they contend a nominee's ideological views constitute "extraordinary circumstances" that would justify a filibuster.
Sen. Lindsey O. Graham (R-S.C.), one of the 14 signers, noted that the accord allowed the confirmation of three Bush appellate court nominees so conservative that Democrats had successfully filibustered them for years: Janice Rogers Brown, William H. Pryor Jr. and Priscilla R. Owen. Because Democrats accepted them under the deal, Graham said on the Fox program, it is clear that ideological differences will not justify a filibuster of a Supreme Court nominee.
"Based on what we've done in the past with Brown, Pryor and Owen," Graham said, "ideological attacks are not an 'extraordinary circumstance.' To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent."
Sen. Ben Nelson (Neb.), a leader of the seven Democratic signers, largely concurred. Nelson "would agree that ideology is not an 'extraordinary circumstance' unless you get to the extreme of either side," his spokesman, David DiMartino, said in an interview.
Of course, this all assumes that Democrats can be trusted to keep their word. Even if they violate the spirit of the deal, however, and seek to filibuster a nominee on ideological grounds, it still works to their disadvantage inasmuch as their betrayal would anger perhaps all Republicans and enough Democrats a cloture vote to end the filibuster would succeed.
So if the Democrats refuse to filibuster over ideological differences, Bush wins. If they do try to filibuster, either cloture will be invoked (if the Republicans can get 60 votes), or the rules will be changed to disallow filibusters (if the Republicans can muster 50 votes). Either way, it looks like any reasonably well-qualified nominee will be confirmed.
The wild-card in all this would be the nomination by Bush of his buddy Alberto Gonzalez. There are enough conservative Republicans who will settle for nothing less than a staunch "original intent" Justice on the Court and who are sufficiently skeptical of Gonzalez that the necessary votes to confirm him may not be there. The word among conservatives is that Gonzalez is Spanish for Souter. Another Souter is the last thing the Court, or the nation, needs.