The Right Coast

May 24, 2005
The Filibuster Deal: Was it a Bad Deal?
By Mike Rappaport

The key issue is: for whom? Was it a bad deal for conservative Republicans? Of course, and they never would have agreed to it. Was it a bad deal for Republicans in general? Yes, as well, but again the Republicans party leaders did not agree to it. Was it a good deal for liberal Republicans, like John McCain? Perhaps, in the sense that he doesn't really want conservatives to be confirmed, but it will cost him if he runs for President.

Was it a bad deal in general? In other words, did it lead to a bad result? Well, that turns in part on how the deal is supposed to work. Filibusters are supposed to occur only under extraordinary circumstances, but what are they? One might interpret that to mean very few filibusters. For example, one might argue the deal precludes filibustering of any judges who are no more conservative than Pryor, Brown and Owen -- after all, the deal seems to suggest that filibustering these three judges would be illegimate. On the other hand, information about the deal suggests that other nominees, like Saad, will be stopped (if not through a filibuster, how?), which suggests that filibusters will occur with some frequency.

I would probably have supported a deal allowing for a supermajority rule for confirmations of Supreme Court justices beginning in 2009, with the election of a new President and Senate -- although even that would probably work against Republicans, since they are likely to hold the Senate. See here. But this deal is much worse than that, since it applies not in 2009, but today, when Republicans control both the Presidency and the Senate. Unless the Democrats do not filibuster again, which is quite unlikely, this looks like a bad deal to me, perhaps a very bad deal.

One final word: Stephen Bainbridge argues that saving the filibuster was a good thing. Perhaps. But what makes him think that President Hillary Clinton, with a Democrat Senate, won't use the nuclear option when Republicans filibuster?