Patterico's Pontifications


Beldar on the Capitulation

Filed under: Judiciary — Patterico @ 6:40 am

I was hoping that Beldar would return to comment on the GOP capitulation on judicial nominees, and I was not disappointed. His post title perfectly encapsulates my thinking: Seven gutless suckers in the Senate:

Sometimes you look at the results of a negotiation — supposedly made by bright, well-informed and -motivated adults on both sides — and you gotta shake your head and point to the folks who were on one side the the deal and say: “Them suckers just got robbed blind.”

Read it all. I have tried to explain why this deal doesn’t leave Republicans any way out when the filibusters come hot and heavy. See, for example, my post quoting the text of the sellout memorandum, and my update explaining why there is no escape clause for the GOP. If I haven’t convinced you, let Beldar take a crack at it:

Jonah Goldberg writes, “if the Democrats filibuster in something which Republicans don’t consider to be an ‘extraordinary circumstance’ won’t the deal be broken and then the Republicans will be free to change the rules[?]” Umm, no. Whoever drafted this piece of larceny extracted a concession which guarantees that the Republicans can never “cry foul” unless they can plead and prove that the Dems are not acting in “good faith” — and not objective “good faith,” as measured by the law’s proverbial “reasonable man” standard, but subjective “good faith,” as measured by each senator’s “own discretion and judgment.” No one can ever prove, or even make a compelling argument, that this standard will ever be violated.

Yup, that’s the problem exactly. Beldar nails it. McCain and company got played like the marks in a three-card monte scam.

The next few posts of mine deal exclusively with this surrender, and the seven chumps we’ll be opposing next time they run for office.

23 Responses to “Beldar on the Capitulation”

  1. Looks to me like the Republicans, once again, have traded the cow for a handful of magic beans.

    D. Carter (385d49)

  2. Why or how this could be a surprise to anyone is beyond me.

    Did you really think voting Republican was somehow going to radically transform politics in this country? The lines between the two parties in terms of WHAT THEY ACTUALLY GET ACCOMPLISHED is minimal. Friends of mine constantly poke fun at me due to my more libertarian leanings. This is EXACTLY why I turned from the Republican party after the first Bush term. There is little to no stance on principal….even when you have the damn MAJORITY it still ends up a mess! What happened to small federal government and fiscal responsibility?

    The overall Republican message sounds so good because at its core is simplicity…..but it is overly complicated by people who seem to be taking their political cues from the John Kerry School of Communication…..FYI that school also has an MFA program on the Art of Flip Flopping.

    Tripp (71cab3)

  3. […] enate deal on judicial nominations Andrew C. McCarthy, NRO The Deal’s No “Victory” Patterico Pontifications Beldar on the Capitulation Power Line For Once, I Agre […]

    Common Sense Junction » Blog Archive » Dastardly Dozen’s Sellout Links (9f4d0e)

  4. Tripp, if you’re a libertarian why are you supporting Dobson’s picks for the judiciary?

    actus (3be069)

  5. Third, let me be very clear: the Constitutional option remains on the table. I will not hesitate to use it if necessary.
    — Senator Frist May 24

    Hmm. Very clear indeed.

    Ladainian (91b3b2)

  6. Actus, are you seriously suggesting that anyone who is a libertarian should oppose good judges solely because James Dobson supports them? If so, WTF kind of argument is that? And if not, WTF are you saying?

    Xrlq (816c74)

  7. It looks like the Sellout Seven subscribe to the Neville Chamberlain school of negotiating tactics – give them what they want now and they won’t take more later. Perhaps some milk cartons with “Have You Seen My Spine” ads for Senators McCain, DeWine, Collins, Graham, Chaffee, Warner, and Snowe are needed.

    Matt S (b9242c)

  8. Actually, Bill Frist said this morning, as posted on Pelican Post, that he did not sign the agreement—neither did any other Republicans who were not party to the “magic beans” agreement mentioned in an earlier comment about your article. Here is my take on the green apple quick step bargain made by Chappaquidick Teddy Kennedy’s poodle, John McCain:


    Well, now we have the bad news that the U. S. Senate’s “Dirty Dozen” fence-sitting amalgam of Senators in the wishy-washy center have been joined by two more like-minded colleagues in throwing the U.S. Constitution down the stairs, disenfranchising a majority of American voters, and legitimizing the use of legislative filibusters against judicial nominees. All of which changes 214 years of historic precedent and replaces it with a brand new license for Senators to obstruct and undermine a duty, responsibility and power of the Chief Executive, the President. What a power grab. And what an insult to all Americans who support the U.S. Constitution and its required balance of power among the three branches of government.

    The extremist Democrats whined, lied, impugned character and integrity of nominees, engaged in hate-speech, and threatened Republicans. And the Republicans blinked.

    The news that this cabal of predominately pro-choice, liberal Senators had made a bargain to let 3 of President Bush’s go through without being filibustered and that future nominees would only be filibustered under “extraordinary conditions” was chilling—and it is unacceptable. ” Extraordinary conditions” is a totally subjective description that is left wide open to interpretation and we have already seen up close and personal how the Senate Democrats have taken judicial nominees with stellar records and twisted their rulings, their characters, their professional reputations, and their beliefs and completely trashed them. We have watched as they imputed false motives and intentions to these qualified judges with no basis for their accusations whatsoever.

    Yet now, as they band together in front of the cameras and microphones, patting themselves and each other on the back and lauding themselves for their accomplishment, we see before us a sellout to the soft bigotry of low expections and motives—and a sellout of American voters.

    We also see the former Ku Klux Klan Grand Kleagle, Bobby Byrd, who first filibustered to block civil rights for black Americans, take on holier than thou airs to elevate himself and make us all forget the vitreolic names and slurs he has been hurling at Republicans and his fairly recent nationally broadcast statements referring to black Americans as “niggers.” Filibusters are his baby…. he’s changed the rules on them many times to serve his various purposes. What Byrd is really patting himself on the back for is getting this unconstitutional version of the filibuster endorsed by his fellow band of soft bigots who are, with him, members of this little self-appointed “compromise” cabal.

    This was not a good day for the Senate. And it was not a good day for Americans. We have been betrayed by this secular-humanist small minority of Senators, whose bargain and shakedown of the full Senate robs them of their right to vote on all nominees and robs the nominees of equal treatment under the law and their equal rights to an up or down vote by the full Senate.

    Red state America did not go to the polls in record numbers to elect a Senate body that would be hijacked by the soft Senate underbelly of media-courting, fence-sitting liberal equivocators. Republican Senators, led by John McCain—who is dedicated to pleasing his Democrat cheerleaders Ted Kennedy and John Kerry and his adoring mainstream media—blackmailed and sold out his party and the President who defeated him in the 2000 presidential primaries.

    Well, pro-choice McCain can pat himself on the back, smile for the cameras, praise himself for his sellout, and bask in the glow of Democrats’ and mainstream media’s praise now—but if he ever decides to run again for President, he needs to understand that he just kissed the majority of red state America goodbye.

    And if the rest of the Senate Republicans go along with this sellout, they may find themselves voted out of office for their weakness and complicity in this trashing of the Constitution and American voters.

    Jacqueline (9e2de7)

  9. Here’s my analytical take (I’ve posted this eleswhere):

    I read this agreement as a complete cave by the Democrats and a complete win by the Republicans. Let me explain.

    1. Forget parsing the agreement as if you were going to litigate over it. That’s not what this is about. The Democrats would not have come to the table if Frist didn’t have the votes. This piece of paper is meant to give the Democrats something to wave over their heads and cry, “Peace with Honor”.

    2. Play out the scenarios.

    a. Pryor, Owen, and Brown get quick confirmations, per this agreement.

    b. Frist brings up Saad, Griffin, Neilson, and McKeague — one by one. Will the Democrats fillibuster them? Of course not — at least not to the point of winning a cloture vote. Indeed, today’s WSJ quotes Reid as predicting, “that all would be easily approved.” And, the Hill has this: Reid added that other Michigan judges nominated for the sixth Circuit “are going to be approved.” Frist said he expected other stalled nominees, Richard Griffin, Susan Nielson, David McKeague, and Thomas Griffith, to get votes.

    The Democrats cannot do elsewise, lest they call into question their good faith (they can hardly call the remaining four, extremists, having watched the first three sail to easy confirmations).

    c. Bolton gets his up or down vote (and wins, with some Democrats voting, AYE). Again, the Democrats dare not fillibuster.

    d. Bush picks his first Supreme Court nominee from someone who has been previously confirmed by the Senate (like one of these first three — probably Brown). Again, no chance of a fillibuster because all have agreed they’re not “too extreme”.

    Remember, this agreement is a political document, not a legal one. If the Democrats misbehave, Frist will call them on it and the drama will play out again on the public stage. A fillibuster will invite a cloture vote. At least two of the seven Republicans will feel pressured to make a finding of fact that the Democrats have not acted in good faith. Hence, they would be obliged to vote AYE for the Nuclear option (50 + Cheney = win).

    Norman Rogers (8f9e08)

  10. Why the surprise? The first loyalty of Senators is to the institution of the Senate! This country club is very dangerous to the country when crucial issues are at stake. They really don’t seem to represent the country, not even their own constituents. They represent some bizarre attitude about being a senator-what is that supposed to mean?? This sickness infects almost anyone who gets there. I would like to see term limits for senators but even that wouldn’t stop this. No solution here really except to get rid of the most junior sentators who did this (once ensconced it is nearly impossible for them to lose). And, of course, no presidential nomination for any of the others.

    Florence Schmieg (a1e126)

  11. “.. we seem to be very near the bleak choice between War and Shame. My feeling is that we shall choose Shame, and then have War thrown in a little later, on even more adverse terms than at present.”
    Winston Churchill in a letter to Lord Moyne, 1938 [Gilbert 1991]

    Greg (e5d4c1)

  12. The thing that get’s me is how spineless the Dems are wrt actually doing the filibuster. We see video of them rolling in the cots, but does anyone believe these fragile old guys would physically have the energy to hang out 24 hrs/day? They are physically too weak to do this. Where did those cots come from, anyway? The filibuster prop room, maybe. As frightened as the Republicans are, they should be called The Nuclear Cots.

    Ladainian (91b3b2)

  13. Agree with Norman Rogers comments above. This deal pushes Dems into a corner and frees up Republican moves for later. Dewine and Graham are Bush guys – they would not have done it without a wink and a nod from someone.

    Scott (3a771c)

  14. Patterico, you and Beldar and the gents at Power Line are all making the same mistake: you’re thinking like lawyers, rather than thinking like weaseley politicians. You guys have got totally the wrong end of the stick on this… and it’s because you took that John Houseman role too seriously!

    You write, this deal doesn’t leave Republicans any way out when the filibusters come hot and heavy. You quote Beldar:

    Whoever drafted this piece of larceny extracted a concession which guarantees that the Republicans can never “cry foul” unless they can plead and prove that the Dems are not acting in “good faith” — and not objective “good faith,” as measured by the law’s proverbial “reasonable man” standard, but subjective “good faith,” as measured by each senator’s “own discretion and judgment.” No one can ever prove, or even make a compelling argument, that this standard will ever be violated.

    Pat, it’s not something you have to prove in court, and you don’t need a “compelling argument” or any “standard” of proof. All you need is something to say to the constituents back home.

    This isn’t a legal contract. If, say, Lindsay Graham personally decides that the Democrats are filibustering for reasons that don’t rise to “extraordinary circumstances,” the only person he has to convince to switch is himself. As he himself admitted, the deal isn’t going to go down well in Stromland. So if the Dems filibuster the next Priscilla Owen — a nominee with not the slightest ethical taint being filibustered clearly on ideological grounds alone — and if Graham says “they broke the deal, so I’m pulling out,” there is no punishment that can possibly be inflicted on him.

    The Democrats can’t sue him. His constituents would likely applaud the move, so it won’t hurt him in 2008. And it sure wouldn’t cause him any problems in the caucus — especially if he brought Warner and/or DeWine with him.

    The only thing that will drive whether those three stick with the deal or return to the fold will be their own crass political calculations of the moment… that is to say, just business as usual for any politician.

    Convince them that their personal careers are better served by backing out the deal — for example, whip up some serious whoop-ass back home — and they’ll pull out under the slightest provocation from the Democrats (which will almost certainly come, and come quickly).

    On the other hand, if there is no heat, if they get the idea they’re doing better by being “moderate” (unconstitutional, that is) on this issue than by being conservative (constitutional), then they’ll stick with the deal no matter what the Democrats do.

    It’s not up to the Democrats; they’re the minority. It’s entirely up to the Seven Dwarfs whether they stay with it… which means it’s entirely up to three senators, two of them back-benchers: if any two of those three switch, claiming that the Democrats betrayed the deal, then Frist invokes the Byrd option and judicial filibusters disappear.


    Dafydd (df2f54)

  15. It seems to me tha I read somewhere that the Scabs (gang of seven) may even vote against one or more of the judges just to show there bona- fides as negotiators.

    I agree with another commentator who said that there are some things that cannot be negotiated. The problem is that everyone thinks there is a middle ground when in realty there was no midle ground. Any negotiation favors the democrats. They have delayed the appointment of judges and will continue to do so. Every day of delay is another day Bush’s legacy is left in the dirt.

    Davod (51e146)

  16. I repeat what I have said in detail elsewhere on patterico’s boards, which is, that, unless, more serious work is undertaken by jurists and constitutional scholars without vested interest, the current trend of appointing judges based on ideology will continue, where the courts have the auziliary role of legislating.

    The crux is the adoption of the common law approach [ in teaching law in Harvard and thus setting the general nationwide trend] to constitutional interpretation. It begs the question whether the constitution, an instrument of the civil law system [ Roman civil law system used in Europe] is compatible with common law approach to commom law case law development by judges.

    Yi-Ling (848211)

  17. “Actus, are you seriously suggesting that anyone who is a libertarian should oppose good judges solely because James Dobson supports them?”

    I’m suggesting that its kinda funny that the judges that radical cleric Dobson favors would be favored by a libertarian. This is because I think libertarians have certain views on, say, porn, gay people, censorship, drugs, and religioning by the state that are very different than Dobson. Not only are they different than Dobson, but they are different than Dobson’s entire raison d’etre.

    Then again, I have in the past met the “cafeteria libertarian” that supports and is enthralled by dubya.

    actus (a5a443)

  18. I think there is a point that is not being considered in this post. The real problem with the Supreme Court is not that it is too liberal but that it is usurping the power of the Legislature and thereby destroying representaive democracy. Merely putting conservatives or libertarians on the court is a stop gap solution and will not solve this basic problem. Mccain et al are incapable of understanding that there is a change going on in this country policially and that they are dinosaurs who will need to be swept away along with the elitists in the MSM and the Supreme Court. Most Citizens of this country are fed up with being denied a say in their culture and being dictated to about what they should think and how they should feel. Read South Park Conservatives to get some idea of the current political revolution going on. The arrogance of Mccain will make it entirely impossible for him to be effective in the new polical climate. Because of this sellout, I believe that a more radical solution to the Judicial Tyranny problem will come about: either direct election of supreme Court Justices for an 8 to ten year term or creation of presidential veto power over all Federal judiciary decisions with the Congress able to override the veto by a simple majority vote. There obviously needs to be more democracy than the present Supreme Court is willing to allow. And anyone siding with the Supreme Court tyranny will end up in the political dust bin of history.

    john (61d076)

  19. Patterico,

    I like the fact that you have taken such an unambiguous position of an event that will be either proved true or false in the not so distant future.

    We are in disagreement currently, but I think neither of us intentionally so. Therefore, lets, wager.

    One bottle of wine on who is proven right or wrong over the remainder of this Congress.

    If interested in setting the terms and conditions, I’ll create a post. You have my e-mail and have been duly challenged, Sir.

    Paul Deignan (346c38)

  20. Patterico,

    Earlier you praised the idea that frist, but not reid, had. That idea was to release senators to vote on their own rather than a party line on the nuclear option. Now that some have decided to not toe the party line, you get all hufty. What gives?

    actus (3be069)

  21. It could have been a way for the Dems to try to save face if they think Frist had the votes, but I would not buy a used tricycle from anyone who has done the character assasination of the likes of Pickering, Estrada, and the others. Perhaps some of the Republicans think they are doing a wise move for themselves, or can get in the light by “looking moderate” and then voting to end the filibuster down the road too.

    My main thought: we said goodbye to Tom Daschle in 2004, who is on the block in 2006? (This time it includes anyone who is an obstructionist, be they Democrat or Republican).

    MD in Philly (b3202e)

  22. it doesn’t matter what the deal says. if democrats filibuster, they will be the obstructionists among voters. period. and it doesn’t matter what republicans do, ever, they will be represented negatively in the press. voters factor that into their thinking.
    maybe, on paper, and from a purely legal perspective this looks like a bad deal. but 1] the left never responds to logic or facts, so a fair confirmation was never part of the question and 2] the current battle is chief justice and 2006 – nothing else. [Boxer’s removal of Bolton’s hold is icing.] this deal [crappy as it is] is a good POLITICAL move for SCOTUS appointment and GOP senate perception going into 2006 elections. and no other criteria should factor into it. if you want principles, talk to McConnell. his speech yesterday was brilliant, and wholly irrelevant.

    jonkendall (8a3aae)

  23. Here is the Senate calendar:, enjoy :). Next up is the UN Ambassador nomination.

    Charles D. Quarles (593219)

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