Meanwhile, Frist gets to go to the floor, and all over TV, and have his mischaracterizations of the issues be the ones that everyone sees. Which is precisely why you don't cut deals with these people -- they're in power, so they get to be the ones people see describing the situation, and now the Dems have to play catch-up with their own take on what just happened.

Stupid.

Looks like the GOPers lost.... From Bloomberg.com:

Senate Majority Leader Bill Frist, a Tennessee Republican who didn't participate in the negotiations, expressed some dissatisfaction with the agreement. It ``falls short'' of the principle of each nominee getting an up-or-down vote from the full Senate, he said. Still, he said, the Senate is back on ``a positive course'' and there is no longer a need for what lawmakers call the ``nuclear option'' that would have permitted abolition of the filibuster by a simple majority. By contrast, Senate Democratic leader Harry Reid of Nevada praised the deal. ``This is a very important night for the American people,'' he said. ``We're not out looking to pick fights with President Bush. He shouldn't be looking to pick fights with us.''

I disagree with those who thought that the Dems would have won this issue in 2006. Both parties were suffering over this conflict, but the Democrats were suffering worse than the Republicans.

The "extremist" nominees stance wasn't getting anywhere, not with nominations like Priscilla Owens up front. She just isn't a good poster child for conservative extremist a'la Bork.

And being the party of obstruction has not been a particularly advantageous position in the past twenty years. Each time the party successfully portrayed as the party of obstruction has suffered at the polls.

Frist is spinning this exactly as expected. He gets to blame others for the deal, take credit for getting through Bush's nominees. He wins all around with his core constituency.

The interesting party to all of this is McCain. Does this help his stock with the general electorate but kill him with the conservative activists? He can win in the general in '08 but can he get thru the primaries?

Thoughts on Paul's post:

1) Frist doesn't "win all around with his core constituency." They're pissed- fuming. James Dobson (head of Focus on the Family) was blasting it earlier.

2) The religous right isn't really Frist's "core constituency" as your post implied anyway. He's been courting them while considering a Presidential bid. This was a key test; he failed.

3) I strongly disagree with your theory that this was huring the Ds more. Why would the Rs cave or not be able to get the votes if this was working in their favor? It just wasn't. Every public opinion poll Ive seen shows exactly the opposite of what you write. Also, if Rs are spending their time talking about this, it's also a wasted opportunity to push thier misguided SS reform. Do you really think a Congress to be remembered for Terry Schavio and crying about a handful of judges is a record of accomplishment for the Rs?

4) Re: the "obstructionism" at the polls over the past 20 years. The signature event of the 1994 Congress was the Republicans (and insurance companies) efforts to kill health care reform. it worked. As you know, the Rs took control of both the Senate and House. Yes, they had the Contract with America, but let's be honest: most voters had no idea of this document until after the election. The biggest political sea change in Congress over the past 20 years is totally at odds with your analysis.

5) This fight was about the Supreme Court, not 06 as your post suggests. It was not going to be a major voter determinate issue, more about rallying the troops and affecting a larger narrative. Yes, the Rs would like that narrative to be "Democratic obstructionism." The Ds have been working to make it about "Republican abuse of power." Also, that they are out of touch to the real issues people actually care about.

As far as this issue affecting our home Senator Smith, while the above is true about it not being a key vote determinative issue, any issue that makes him chose between the wishes of his state and the wishes of the R leadership counts- even if its more like a bb than a silver bullet. Not listening to Oregon fits into Smith's vulnerabilities.

Finally, when you're in the minority, as the Ds are, being able to prevent this (even though certainly it's not a clear cut victory) works to unify and galvanze the members. You may think Frist won this, but I think you may be the only man in America who holds this view.

Here's Dobson's statement btw:

"This Senate agreement represents a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats. Only three of President Bush’s nominees will be given the courtesy of an up-or-down vote, and it's business as usual for all the rest. The rules that blocked conservative nominees remain in effect, and nothing of significance has changed. Justice Clarence Thomas, Justice Antonin Scalia, and Chief Justice William Rehnquist would never have served on the U. S. Supreme Court if this agreement had been in place during their confirmations. The unconstitutional filibuster survives in the arsenal of Senate liberals.

"We are grateful to Majority Leader Frist for courageously fighting to defend the vital principle of basic fairness. That principle has now gone down to defeat. We share the disappointment, outrage and sense of abandonment felt by millions of conservative Americans who helped put Republicans in power last November. I am certain that these voters will remember both Democrats and Republicans who betrayed their trust."

Prof. Gronke's logic doesn't make too much sense either: if Democrats were losing this debate before (we weren't, although there's plenty of danger for both parties), why would making this debate go away result in Frist being the big winner, not the Dems? Paul & I aren't going to see eye to eye on this on: we don't even agree on the basic facts.

I wrote earlier that we're really just talking about 10 filibustered judges; Bush had gotten over 200 more though. Paul corrected me writing: Charlie, I think they filibustered more like 30 nominees last session. 10 have been sent back up.

I stand by my original accurate statement.

Charlie, it's true that Dems were winning the battle of public opinion, but there's no guarantee that would have continued. I think the nuclear option vote would have been a psychological turning point. If that vote was had and lost, and the D's were left with no option but to slow down the Senate, the public might soon have run out of patience. It's a lot easier to spin the D's as obstructionist than it is for the D's to spend the next year and a half explaining why they're jamming up the works.

The NY Times has a very interesting article about how Warner and Byrd put this agreement together, studying the Federalist papers and discussing what "advise and consent" is supposed to mean. While the agreement is not exactly airtight -- how could it have been? -- I think the real import is the message that Warner sent the White House. I take that message to be that if the WH continues to act arrogantly and without consultation, sends up a hard right nominee for the Supreme Court, and the D's filibuster, Warner will not support the nuclear option. The WH has to know that the defection of a guy like Warner would give cover to the other three R's who would be needed.

Interesting to see how the winners and losers are shaking out in early analysis. We won't know who the real winners and losers are for some time. But hey, that doesn't stop us from speculating. Here's how I see it.

Winners--short term Republicans, who get through the highest-profile far-right judges. Who ever heard of Henry Saad? Getting Rogers Brown, Owens, and Pryor through can only be seen as a victory. Expect crowing to commence.

Winners--mid- and long term Dems, who now have a card to play in the coming Supremes battle. This will force Bush into a Rehnquist-like nomination rather than a Scalia-like one. More importantly, it preserves the filibuster for later years, when Dems are certain to have a majority (not that I'm biased or anything).

Winners--Moderates The center of power in the GOP just shifted dramatically, if temporarily. By cutting out Frist and negoatiating a deal in private, moderates have exercised their own power. Nervous theocons might look at polls and how well their moderate comrades line up on the issues and start to wonder if they're actually the dinosaurs who are due for extinction.

Losers--Theocons For the first time, theocons are going to have to think very seriously about how they deal with Democrats and moderates in their own parties. Even while the filibuster battle was going on, moderates were busy working up a stem-cell research bill--the kind broadly supported by Americans but opposed by the Dobson right. It ain't over til it's over, but this is a serious bump in the road.

Loser--Bill Frist Frist had a decision to make a couple years ago: play the Guiliani strategy--popular with the people, unpopular with the base--or go Tom DeLay. He went DeLay, and now he's in trouble. First the setback with Terri Schiavo, now the filibusters. Moderates won't like him, and the Christian base is going to see him as a compromiser.

Winner--Harry Reid This deal was only possible because Harry Reid wouldn't budge. He gave moderates the cards they needed to sit at the table with the moderate GOP, who could see clearly that there would be brutal cost for voting to end the filibuster. The WH and GOP leadership know they have a formidible foe in Reid, which will force them to lay off the throttle in their master plan.

This really just puts this off because I am fairly confident that the definition of "extreme circumstances" is different if you have an R or a D next to your name.

I think the winners and losers are ultimately a mixed bag and the true victors will not be crowned until much later. If this is all about the Supreme Court, it may not even be a matter of the soon-to-depart Chief Justice. Replacing Rehnquist with a conservative is a zero sum game, however replacing Justice Stevens -- the Court's oldest and arguably most liberal member -- with a conservative... well, that's the real prize the right's seeking.

Thinking healthy thoughts for Justice Stevens...

Chris:

I agree that there was certainly plenty for both parties to fear as they prepared to enter those unchartered waters (as per my danger comments above).

More on Paul's comments:

I basically disagree with about 90% of all of the analysis I've read from Paul Gronke on the subject since day one (and with whom I'm normally sympatico with).

Also, reading this again I realized I skipped over another point of his re: his gut feeling about Priscilla Owens vs. Bork. To state the obvious, this is an apples and oranges comparison. There will ALWAYS greater scrunity of Supreme Court nominees. Plus, during the Bork hearings, Bork was the only game in town.

In this debate, there are two figures- Janice Rogers Brown is part of the mix too, and I cant count how many times the media repeated her New Deal/"our socialist triumph" comment. The messaging against Owens focused on her anti-abortion judicial activism, Enron loving corporate ways, and her poor job performance in handing down timely decisions.

To both "nuclear option" proponent and opponents, the merits of the nominees weren't the central focus of communication (even though they've always been part of the mix).

Back to Bork- who most readers here probably don't remember so well (we're dating ourselves!)- I can't hear his name without thinking of my brilliant, charming, and slightly insane auntie who said to me at the time, "Bork. What the hell kind of name is that. It sounds like a fart in a bathtub."

God bless that woman, but I digress.

Taking the nuclear option off the table greatly diminishes the likelihood of a truly hunter/gatherer Supreme Court confirmation debacle. We're still going to have a fight, but it's not game-set-match now. And that's why many of us have been working hard on defeating this.

Paul doesn't think protecting the rights of the minority is a checks and balances issue. I disagree with him. More significantly, Charlie Hinkle, the top Constitutional lawyer in the state disagrees with him. Hell, even Ken Star disagrees with him.

Speaking of Constitutional issues, and I can't remember if this was Paul or someone else, it was argued earlier that pointing out the abstract Constitutional issues was a wonky and ineffectual argument. It shouldn't be the ONLY point, but this is total contradicted by just about every single major ballot measure fight we've had in our state for the past decade. Becky, help me out here, but how often have you heard "Don't amend our Constitution" being used as another reason for opposing statewide ballot measures.

And I will now end my filibuster and cede the floor to my good friend, the right honorable gentleman from Reed College.

Charlie,

I'm sorry that we disagree so much, but I suspect that you are deeply dedicated to a partisan victory on this issue, while I'm deeply concerned about the ability of the Senate to function as a legislative and deliberative body.

That's why I've objected to descriptions of the "200 year history" of this filibuster even though the first filibusters were in the 1840s; or the refusal to concede that the Democratic use of the filibuster to stop lower court nominees is unprecedented.

One never knows how the Founders may have viewed the filibuster -- but we know that they didn't have any opinion on it. It's not in the Constitution -- little about how the Senate should function is in the Constitution. The filibuster is simply a norm, and as such, can be changed without shaking the essential foundations of checks and balances as originally enshrined in our Constitution. If Ken Starr and Charlie Hinkle disagree, they're just wrong

There is no disagreement in the literature that the constant use of the filibuster has virtually shut the Senate down in many instances. Minority rights is a wonderful flag to run up the pole, but it's at a point where single Senators from tiny states can stall national policy. That is not anyone's definition of checks and balances.

(Note, I never EVER wrote that protection of minority rights was not a checks and balances issue.)

As to Frist and the conservatives, we'll see in 2008. I think you are reading far too much into the instant analysis. Dobson is fuming now but we'll see which horse he backs in '08. If it's Frist vs. McCain, he sure ain't backing McCain. If you have another horse on the right, let me know. Right now, I don't see one.

My analysis remains: I think Frist is playing this exactly as expected; he's putting most of the blame on McCain and his ilk, thus inoculating himself (I think successfully, you think unsuccessfully) from charges that he caved. (I never wrote he was the "big winner" by the way.)

On the parties, again, we disagree, but I think here again we both are relying on gut instinct.

I don't think the Dems were winning this debate, based on falling public evaluations of Congress (for both parties) and punditry that I read referring to internal polls by the Dems and Reps. I thought that the Dems were a) hurting more and b) could be successfully painted as obstructionists if they stalled all action.

On the costs of obstructionism, I rely heavily on the consequences for the Republicans of the government shutdown in the 1990s; and literature such as "Stealth Democracy" and "Why Americans Hate Congress" that shows the public relies heavily on a "process orientation" when evaluating Congress. Decisions that are decided on overly partisan grounds or otherwise using unfair "processes" are viewed negatively.

My intution is that the Democrats would have a hard time defending a position that nominees do not eventually deserve an up or down vote; and that outside of the activist segments, Court appointments are not all that salient an issue.

If you asked the mass public to choose between stopping one of Bush's appellate court nominees and passing highway, farm, or energy legislation, I think most Americans will choose the latter.

I think the Dems knew that and that's why they compromised.

but I suspect that you are deeply dedicated to a partisan victory on this issue, while I'm deeply concerned about the ability of the Senate to function as a legislative and deliberative body.

It's true that I am deeply dedicated to protecting the full range of reproductive options for women, core labor and safety protections for workers, and clean air and water standards for families. That's a large part of what this debate is about. I don't see the filibuster of 10 of the most eggregous Bush nominees being a huge threat to Senate business and efficiency. But I am also "partisan" in the sense that I wanted to kill the nuclear option, even though I can usually tell the difference between what I want to see happen politically and what is actually happening on any given issue. I don't think I was just seeing what I wanted to see during this debate.

You wrote that the Democrats refuse to concede that "the Democratic use of the filibuster to stop lower court nominees is unprecedented."

It's not unprecedented. Both Circuit Court nominees Edward Earl Carnes Jr. and Rosemary Barkett were filibustered by the Republicans as recently as 1994. There's no reason these lower court nominees shouldn't count. And I repeat that there were 10 filibustered judges, not 30 as you corrected.

I've objected to descriptions of the "200 year history" of this filibuster even though the first filibusters were in the 1840s

As you mentioned in an earlier post, inaction as a means to kill a nominee takes many forms, with an actual filibuster being more rare than some other means. But if you look at using inaction to kill nominees, this dates back to the earliest days of the country. John Adams had the confirmation of at least 9 nominees "postponed" indefinately from 1779-1801- which caused their nominations to die as a result. During the Monroe Administration, the Senate failed to act on so many that his successor, John Quincy Adams, felt duty bound to renominate all of the rejected nominees.

I agree that the filibuster is not explicitly in the Constitution. Neither is a requirement for an "up and down vote" for judicial nominee. What the Constitution does say is the Senate holds the sole power to form its rules (Article 1, Section5). The executive branch, which has been driving much of this efforts, should have absolutely NO authority over these rules.

You may not like the filibuster, but surely you would agree that turning the Senate confirmation process into more of a House style, 50% +1 type approach would affect the relationship between the Executive and Legislative branch.

Court appointments are not all that salient an issue.

I think you will see court nominations and appointments become more a vote determinate issue as younger voters- especially younger women- see that Roe can actually be overturned. Right now you have a lot of younger women who are abstractly "pro-choice" but consider this a kind of fake issue that's basically just rhetoric, and not a real theat. They've never lived in a pre-Roe world. When the debate is made more real to them I strongly believe there will be consequences.

I never EVER wrote that protection of minority rights was not a checks and balances issue.)

Fair enough. You wrote that the filibuster debate is not a checks and balance issue. I believe the filibuster is an important tool to protect the rights of the minority; but we don't seem to be seeing eye to eye. This will be my last post on this topic, I just didn't have any time to respond to your earlier posts about our supposedly innaccurate judicial filibuster count or intellectually dishonest messaging during our active local effort to do something about this dangerous power grab.