Who Got Who

The deal is in. Via NRO:

MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS

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.

While both sides will undoubtedly claim a victory, the conservative true-believers are not happy, from what i've gathered in the last half hour or so listening to the radio and tv pundits.

i'm not overjoyed at the compromise, but i'll have to live with it. What choice do i have? Last time i checked, i am not a United States Senator.

So this is a deal that allows the Democrats to save face, while still giving the Republicans a vote on some of the nominees. Or, it's just as accurate to say that it allows the Republicans to save face while still allowing the Democrats the option to filibuster in the future.

In the world of civil litigation, lawyers say it's a good settlement when both sides are unhappy. But there's another rule in negotiating settlements: "Never negotiate away your leverage in exchange for "goodwill."*

If there's one thing plaintiffs attorneys and Democrats have in common (besides John Edwards) it's that you can't trust a single one of them to act in good faith. Like Sam Gompers, they want only one thing: "more." And they're absolutely shameless about getting it. We saw that in the way guys like Harry Reid completely flip-flopped on the issue of floor votes for judicial nominees.

That's why the most troublesome part of the deal for me is this clause:

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.

It doesn't take a genius to figure out that that's a promise meant to be broken. And when they do break it, as i promise you the Democrats will, we'll be arguing about the meaning of "extraordinary circumstances" instead of the meaning of the Constitution.

That's the biggest problem with the deal. It takes the issue of constitutionality off the table. The true-believers have a right to be angry on that point. By conceding to the minority a power to block majority will on judicial nominees, the Republicans have conceded the constitutionality of that procedural tactic. They caved in on the very principle that brought about this entire crisis. And for what? A bit of goodwill. A promise to be good from now on.

Ha! That's worth about two dead flies.

Why would Senate Republicans negotiate away all their leverage by giving up the nuclear option in exchange for a promise? Because they are suckers? Because they love Senate tradition more than they love the Constitution? Or because the Republican Senate leadership is just plain bad at their job?

As i mentioned before, my ideal solution would have been to do away with all filibusters on all issues. Why the hell should one half of the legislature have that stupid rule when the other house does very well without it? The filibuster is almost never used for a noble purpose.

i agree with the late Tip O'Neill, who was wrong about so many things. But he was on the right track when he wrote:

Thanks to television, the House of Representatives is now recognized as the dominant branch of Congress,. [sic] In 1986, the Senate brought in TV cameras as well. But the senators ramble on for hours, whereas our members can speak for only five minutes, apart from "special orders" at the end of the day, and a few other exceptions. Unlike the rules of the House, those of the Senate allow for unlimited debate and unrestricted amendments. Now that the Senate is on television, the prestige of the House should continue to increase."
[Thomas P. O'Neill, Man of the House, p. 290, Random House, 1987]

Today's compromise, in favor of a supposed status quo that's not even really a status quo, ensures that the Senate will remain the weaker, less prestigious house in my book. How can anyone say otherwise when its own rules allow the minority to dictate to the majority and no one has the guts to do anything about it?

More outrage: see Professor H; Three Knockdown Rule; i can't disagree with Patterico's prediction; Spoons has a riddle; and Mark Nicodemo agrees that the Senate Republicans are inept; and Nikita Demosthenes calls them out by name.
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* Okay, i don't know if that's really a negotiating rule, i just made it up. But it should be.

[Cross-posted at A Western Heart.]