Tuesday, May 24, 2005

The Senate Still Has Rules - For Now

Fourteen Senators reached an agreement that preserves the rules of the Senate for now. The price for this agreement is that three atrocious people - Janice Rogers Brown, Priscilla Owen and William Pryor will be put on U.S. Circuit Courts of Appeal (Pryor is already on, temporarily, as a recess appointee.) Is the price worth it?

Though the price was dear I think it was worth it because I'm not confident that the forces of reason and Democracy would have stopped the nuclear option. Once the bomb exploded we would have not only had these three judges confirmed but many more who could possibly, if that is imaginable, be much worse. But that would be just the beginning. Bush would have completely taken over the Senate. From that point on, fifty Senators, with the assistance of Dick Cheney, could have done whatever they wished. The Senate is not much of a check as it is on the absolutism sought by the radical right. After the nuke exploded it would have been no check at all.

There is one side of me that thinks the chaos of a successful nuclear power grab would have been in the long term interests of the country. The premise for this argument is that the American electorate would finally rebel against the legislative agenda the radical theocrats would enact and be revolted by the country's rapid slide into Presidential autocracy, causing a sweeping realignment of power in 2006 and 2008. But the risks are too great and the damage done in the interim could be profound.

So I prefer to adopt the more cautious hope that this agreement could be a really positive turning point for the Senate and the country. That Senators will demand a more collaborative posture from the White House and not just on judicial appointees. They have been to the brink and the view was scary. It is our country that the White House is playing with and its time for at least one branch of government to act responsibly.

Here is a good summary of the reaction across the political spectrum and the text of the agreement

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.

Gary L. Norton

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