None Dare Call It Partisan.

Since 14 Senators avoided the nuclear option by agreeing to end debate on three judicial nominess and not to filibuster except in "extraordinary circumstances" the question nobody seems to have been able to answer is just what are "extraordinary circumstances." This blog reviewed the agreement back in May (click here for document) to take a stab at defining the term and concluded that extraordinary circumstances exist when the President fails to consult with the Senate before he submits nominees to the Senate for confirmation. (Click here.) Nothing that has happened since then suggests that definition is wrong. It's curious that nobody else seems to have come to the same conclusion.

In the June 13, 2005, Best of the Web, Jame Taranto wrote that the term "is an empty phrase if the signatories construe it to include partisan opposition to a nominee." (Click here.) Taranto was responding to a New York Times editorial that scolded Senator Bill Frist for daring to suggest that he could still exercise the nuclear option if the Senate Democrats filibustered a future nominee absent "extraordinary circumstances." The Times editorial took the ludicrous position that Frist, despite being the majority leader of the Senate, had no power to decide for himself whether a filibuster is justified by extraordinary circumstances or not. (Click here for New York Times editorial.) The Times' conclusion that only the 14 signatory Senators can decide whether extraordinary circumstances exist is actually supported by the text of the agreement, which just shows how much of a power grab the agreement was. And it's a power grab that favors the Democrats in the Senate because of what the 14 Senators believe constitute "extraordinary circumstances."

That's because the term "extraordinary circumstances" appears elastic enough to include partisan opposition in its definition. To reiterate what this blog wrote back in May, although the filibuster agreement refused to define "extraordinary circumstances" it did describe what the 14 signatory Senators believe are ordinary circumstances for judicial nominees in its final three paragraphs.

Those paragraphs state that the 14 Senators believe the word "Advice" in the "Advice and Consent" clause "speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations." The agreement further explains the view of the 14 signatories that such consultation is consistent with the "early practices of our government" and that their agreement is "consistent with the traditions of the United States Senate."

In other words, in their view the Constitution contemplates Senate advice to the President before a nomination is sent to the Senate not after, and that such a practice is rooted in the historical practice of the US government and the tradition of the Senate. To the 14 Senators then, pre-nomination consultation between the President and the Senate is the constitutional and historical norm and the present lack of such consultation is outside the norm.

The agreement builds on that belief and explicitly encourages the current president to consult with both Republicans and Democrats in the Senate before sending future nominees as a way to "reduce the rancor that unfortunately accompanies the advice and consent process ...." By requiring the president to consult with Senate Democrats as well as Republicans before submitting a nomination, the 14 Senators have conspired to weaken the president's power to nominate as well as undermining the Republican majority in the Senate.

Any Democratic signatory to the agreement could support even a partisan-motivated filibuster without violating the agreement if the President failed to consult with the Senate before submitting the nomination. Any Republican signatory would be hard pressed to argue a filibuster in such circumstances breaks the agreement and justifies changing the filibuster rule with respect to judicial nominees.

A nominee sent to the Senate without pre-nomination consultation is more likely to be a nominee the Democrats oppose for partisan reasons than one that has gone through a pre-nomination consultation. Until the President begins to consult with Senate Democrats before picking his judicial candidates his nominees are vulnerable to a nuclear option-safe filibuster. A partisan victory for Democrats in the name of moderation and centrism, thanks to the 7 wobbly Republican Senators who signed the filibuster agreement.

-tdr