Patterico's Pontifications


The Text of the Capitulation

Filed under: Judiciary,Morons — Patterico @ 5:45 pm

Confirm Them has the text, which I’ll reproduce here:


We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate’s Judiciary Committee.

We have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Part II: Commitments for Future Nominations

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.

It’s a complete and pointless capitulation.

Here’s who to oppose the next time they are up for election: McCain, DeWine, Snowe, Warner, Graham, Collins, and Chafee.

UPDATE: Read it. The only conceivable “out” for Republicans is if Democrats fail to live up to the agreement — but each Democrat commits only to “use his or her own discretion and judgment” in deciding whether to filibuster. All they have to do is say: “My conscience tells me this nominee should be filibustered” and they have lived up to the deal.

It’s very simple: the Republicans lost. Their hands are tied. They caved. There is no silver lining.

24 Responses to “The Text of the Capitulation”

  1. Patterico,

    The Dems have punted and accepted the aforementioned three to be “mainstream”–expressly not worthy of filibustering.

    On the other hand, no one is held out as worthy of a filibuster.

    The GOP only agrees to not nuke as long as the Dems don’t abuse their power (and the word extraordinary is added for all to be the judge of).

    Again, effectively and politically this is a big win for Frist. Each new nomination that is confirmed only raises the bar on the meaning of the political “extraordinariness” of the situation. Bush can safely now nominate any well qualified, religious, pro-life jurist–just so long as that jurist is not an abuser of power, political hack, or intemperate (in the real meaning of the word).

    Each time the Dems filibuster, we will ask, “Is this extraordinary?” If they filibuster more than one particular nominee, we will conclude that the situation is not extraordinary (rare). Thus, the Dems are also agreeing to limit the filibuster to targeted cases more objectively extreme than Pryor or Owens or Rodgers (or any other confirmed appointee).

    The word “continuing” is also key. It is a conditional promise not to nuke–a promise to be watchful.

    This agreement is fine. Let’s hold them to it.

    Paul Deignan (7cc786)

  2. On the bright side, any doubt that McCain was a non-starter in 2008 has now been erased.

    Why is it that, with 55 senators, we’re still the Democrats’ b*tches?

    The Angry Clam (f05866)

  3. Simply unconscionable.

    Who is running against McCain next time? I will be sending him/her a check.

    Am I A Pundit Now? (3ad205)

  4. Paul,

    Problem with this “victory for Frist” is that even assuming that the Democrats filibuster some future nominee that they claim is “extraordinary” and Frist threatens to change the rules again, we are right back where we started with the dithering and fecklessness of the GOP Senate.

    The arguments will remain the same that Bush’s nominees are outside the mainstream, McCain/Hagel/et al. will continue to work for “comrpomise” and Frist won’t have the stones to invoke the change the rules.

    Christopher Cross (b7ca82)

  5. Patterico,

    On the UPDATE:

    ALL Senators get to judge what is extraordinary.

    Now think of the term extraordinary. If Bush nominates two concecutive jurists to the SCOTUS and there is no objective case against them and they are filibustered, who will be judged as breaking a promise or being “extreme”?

    EXTRAORDINARY means rare in the common understanding.

    Paul Deignan (7cc786)

  6. Criss,

    As in dating, there is more than one fish in the sea.


    Cheer up. This is political genius by Frist.

    Paul Deignan (7cc786)

  7. Paul,

    I disagree on your def. of “extraordinary” in this context.

    My money is on the Dems filibustering ANY Supreme Court nominee on the grounds that “Well, this is the SCOTUS, it really matter now, hence we HAVE to filibuster.”

    That’d be sufficiently “extraordinary” to justify the filibuster by the Dems and the MSM will certainly aid in that perception…

    Forgive me if I don’t yet see the genius that is Frist.

    Christopher Cross (b7ca82)

  8. Some things never change

    Ralph Neas is still in charge of Federal judge selection

    I’d rant a little but Patterico has already taken care of it. And how about ole John McCain?

    Country Store (59ce3a)

  9. “Moderate” Reps settle for three out of ten

    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 stun…

    The Unalienable Right (7a057a)

  10. You people are idiots if you think this is a good deal. The widespread reaction against this in the right-blogosphere should clue you in on what a disaster this is.

    This is nothing but an unadulterated victory for the extreme left. They are crowing, because they know they’ve won. And despite looking at yourself in the mirror and saying this is a good deal, it isn’t.

    The Republicans lost. They’ve abandoned their majority, after we worked hard to build it, and they did it by spitting at all of us who suffered for them. And as a result, suprmacist judges will continue to legislate from the bench on gay marriage, abortion, criminal law, and terrorism.

    Democracy has never been in greater peril.

    Sydney Carton (e2a2a4)

  11. Thanks to all seven turncoats, the senate is back to the peaceful laughingstock of a deliberative body we all hoped that it wasn’t.

    The only good thing that can come of this is that we now now which seven senators will not be running in the Republican Primary.

    McCain…please switch parties now and save the Arizona Republican party the problem of dealing with your sorry a** in the upcoming primary. I can only hope that lighting strikes to save us all (the Demos will find you to be just as painful of a headache as we have) hassle of how to deal with the driveling crap that drools out of your sorry face.

    You have dishonored all of the soldiers who are fighting to defend the constitution that you just sold to the demos for a few shekels you Judas…

    nocoen (af51a9)

  12. What did the Republicans get out of this? If they think they’ll be able to resort to filibusters when they’re out of the majority again, they’re fools, and they’ve pretty much conceded that they don’t have the ability to govern and don’t deserve to have a majority. Frist is now seen as too weak to control his own caucus and is a non-starter for President in ’08.

    What on earth do they think they’re getting out of this? They’ve ticked off their strongest supporters and dithered when they should have stood their ground. Politics ain’t bean bag. Once they know you can be rolled, you don’t stand a chance in the future. One of the most serious problems we have is that pressure groups have learned that when they can’t get what they want through democratic means, they can go through the courts, and what can anybody do about it? Apparently nothing.

    AST (dd3ed8)

  13. I cannot support any “deal” that Robert C. Byrd is involved in. There is not a moderate bone in his body. And I have zero trust in Harry Reid going along with this deal – I can just hear him saying: “I never signed off on the deal with Republicans and I cannot support this extremist nominee of the President’s.” Let us not forgot that the liberals do not like or trust Lieberman and will stab him in the back the first chance they get. Surely they know Byrd has lost his mind but can crow that the deal is legitimate because the old man was involved.

    As the Democrats continue to hit rock bottom and yet dig deeper every day, for a reason that eludes me, seven Republican Senators yearning for the old days of the Senate’s idyllic political country club life sold out the Republican leadership and Republican voters nationwide to preserve their 110-member club’s comraderie and patrician behavior.

    Give me a break.

    Fourteen lawyers wrote this deal, so I am curious to see how the “extreme circumstances” deal holds up.

    I don’t think this was a clear victory for Dems since some nominees will get appointed, but I wish the Republicans had stuck to their guns.

    And I really hope President Bush does, and continues to send qualified conservative judges for Senate approval. If the Senate can’t be counted on, surely the President can.

    lyndi (ffbcd7)

  14. To the 14 members of the brand new Rhino Party:

    I have not heard anything about the judges who will presumably get denied up or down votes that comes _near_ ‘extraordinary circumstances.’ If you have strong opposition to someone personally, you can state your case and vote your conscience. We don’t need grandstanding like Reid’s unanswerable indictment of Saad to notice an honest disagreement.

    I agree that rejecting a Presidential nominee should require ‘extraordinary circumstances,’ which is indeed why it was contemplated that ‘advise and consent’ should require a 2/3 majority to _reject_ the nomination. Not 41.

    But it appears that the Democratic leadership has a different view of the term ‘extraordinary circumstances.’ I expect your abdication be used against the majority in the perfectly ordinary circumstances of considering top-rated ABA judges, overwhelmingly popular sitting Judges, and other nominees whose sole “flaw” is being originalist.

    But let’s take this test of terminology.

    I will only contribute to the national RNC — or your reelection campaign in particular — when the _extraordinary_circumstances_ of the Democrats’ actually adhering to the plain-English meaning of the term ‘extraordinary circumstances’ actually happens to a reasonable extent. Three nominees have already been retracted before we ever reached this stage through no particular ‘extraordinary circumstances,’ not including the witch hunt that was performed on Bork. I’ve been paying attention, so convincing me of a good faith effort here would indeed be… extraordinary.

    I think the last five times I’ve entered a church it was for a wedding or a funeral, so please don’t consider this the ravings of a religious zealot of any stripe. I’m just a middle-aged, middle-class professional who has become outraged from my personal observations via CSPAN and my readings on FindLaw.

    Al (00c56b)

  15. You guys dont get it.

    This isnt a victory for either the right or the left. The extreme left is just as angry about this as you are, becaue Owen and Brown were the two most extreme of the five judges up for confirmation. They would have preferred to flip it the other way- letting the other three by and stopping just those two. They didnt get that mostly because of pressure from extreme righties like Dobson, etc.

    This isnt a “Victory” for anyone, really, just a way to defer the real fight until later, when Bush get to nominate a new Supreme Court justice.

    Mark Key (0ead32)

  16. […] an that in a good way); Beldar labels the 7 RINOs gutless suckers; Patterico labels it a capitulation; Michelle runs a graphical interpretation of the “c […]

    Literal Barrage » Deal Reax (8e252c)

  17. This isnt a “Victory” for anyone, really, just a way to defer the real fight until later, when Bush get to nominate a new Supreme Court justice.

    And our hand is weakened for that fight, since we have sanctioned any filibuster undertaken in “good faith.”

    That’s why we lost.

    Patterico (756436)

  18. This isnt a “Victory” for anyone, really, just a way to defer the real fight until later…

    That’s why this is Munich.

    Christopher Cross (a3c034)

  19. Munich was a victory for hitler.

    actus (3be069)

  20. Yes, and aren’t we ALL Hitler in some respect? [/godwin]

    But insofar as this deal merely kicks the can down the road delaying a much larger conflagration (SCOTUS), the analogy to Munich works.

    Christopher Cross (a3c034)

  21. “But insofar as this deal merely kicks the can down the road delaying a much larger conflagration (SCOTUS), the analogy to Munich works.”

    This is more of a historical debate than a political one, but I think the munich analogy — besides the godwin/hitler references — isn’t just about deferring a fight. The munich analogy says that the fight now is easy, and later it will be harder. Thats how it was a victory, and not just a deferral, for Hitler.

    actus (3be069)

  22. […] #8217;t. Nor am I going to re-hash all the arguments as to what I think is bad about it. Patterico, Beldar, Captain Ed, PowerLine, Ace of Spades, Michelle Malkin, Jeff Goldst […]

    damnum absque injuria » Always Look on the Bright Side of Life (38c04c)

  23. what the Republicans got

    Lots of people think the Republicans got played for suckers. Not me. I think the Republicans got just what they wanted.

    Doc Rampage (59ce3a)

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