Shut up! Just shut up!

Updated I haven't written anything here about the filibuster battle because, as I've said before, I tend to leave aside issues that seem to be getting more than adequate attention elsewhere. But I did want to mention at least in passing my reactions to the "compromise."

First things first: I'm quite comfortable with the filibuster as it exists. Yes, it's been used for bad ends - blocking civil rights legislation being the most notorious - but it's a legislative tool, and like most tools, including parliamentary procedures, it can be used for both good and bad ends. It just seems to me that some matters are sufficiently important that it should take more than a bare majority - or at least more than a bare majority being prepared to vote - to approve them.

Second things second: There was a lot of misunderstanding as to what the so-called nuclear option involved. In the event of a failed cloture motion, Bill Frist [R-God's Chosen] planned on calling for a ruling from the chair (occupied by the president of the Senate: VP "The Big" Dick Cheney) that filibustering a judicial nominee violated the Senate's duty to "advise and consent" on such nominees. Cheney would say it did, the decision of the chair would be appealed to the whole body - and it would only take a majority to uphold it. With a 55-45 majority, the GOPpers could have five defections and still win on a tie-breaker cast by Cheney. And boom! filibusters of judicial nominees are gone.

(A question I wanted someone to ask was why just judicial nominations, leaving others subject to filibuster? Why should it be easier to approve a lifetime appointee to the federal bench than some Secretary of Transportation whose term in office is highly unlikely to survive beyond the administration that appointed them? So far as I know, no one asked.)

The Democrats responded, at least initially, by threatening to use the Senate's own rules to bring business to a halt: For example, holding committee hearings requires "unanimous consent" among its members. Usually, that's just a formality - but it doesn't have to be.

So this group of 14 senators, seven from each party, got all flustered and bothered and after huffing and puffing for a couple of weeks came up with the "compromise," the Solomon-like answer to their most fervent prayers. In brief, the members of the group pledged to vote in favor of cloture on three of Shrub's radical right nominees to the federal bench - Priscilla Owen, William Pryor Jr., and Janice Rogers Brown - but to vote against an attempt to abolish the filibuster, i.e., to vote to overturn Cheney's expected ruling on its constitutionality.

The kicker comes with the promise to avoid supporting most filibusters of judges - or, as the agreement puts it.

future judicial nominations should "only be filibustered under extraordinary circumstances."

While many of the news reports have said that what constitutes "extraordinary" circumstances is left to the conscience of individual Democratic senators, that's not what the agreement actually says: It says it's left to individual senators, period. The difference is significant in that it provides a convenient escape clause for the GOPpers:

Sen. Mike DeWine, R-Ohio, said the agreement was conditional on Democrats upholding their end of the deal.

It thus would be entirely in keeping with the letter of the deal for the GOPpers to at any useful point in the future to say of a Dem attempt at a filibuster, "This is not an extraordinary circumstance! The deal's off!" With Frist saying the nuclear option is still on the table and that he "will monitor this agreement closely," that is by no means an idle concern.

Indeed, there are more reasons than that to wonder how long this deal will last.

[John] Warner[, R-VA,] said he was led to compromise because of one unanswered question that guided him through the process: "What would happen to this Senate if the nuclear option were done?"

"No one was able to answer that to my satisfaction," he said. ...

"We have reached an agreement to try to avert a crisis in the United States Senate and pull the institution back from a precipice that would have had - in the view of all 14 of us - lasting impact, damaging impact on the institution," [John] McCain[, R-AZ] said.

Okay - if the seven Republican senators involved in this were that concerned over what Frist's proposal would do to the functioning of the Senate, why not just oppose it? Why hold it hostage to approval of three radical right judges? That, to echo Warner, is a question no one has answered to my satisfaction - and it's one that gives me pause about what will happen the next time a judge (or even some other appointment) that the White House really wants comes along.

In all, the "compromise" thus amounts to allowing three of Shrub's radical right nominees lifetime positions on the federal bench (plus three more for who Harry Reid has pledged to "clear the way") in return for an unenforceable promise to not re-light the fuse of the nuclear option in the all-too-likely future event that a couple of the GOPpers who signed off on the deal think the Dims are getting too uppity. This is what Harry "Speak loudly and carry a small stick" Reid called sending

the "radical arm of the Republican base" the "undeniable" message that "abuse of power will not be tolerated."

All this leads me to agree with one analyst who said the agreement substitutes shooting the filibuster in the head with a slow death by asphyxiation. In fact, I'd go beyond that to say it's a death knell: The net effect is that these "moderate" (Sidebar: It shows how far things have moved that McCain is apparently too "moderate" to be called a "conservative.") GOPpers have said to those across the aisle "you can filibuster whenever we decide it's okay" and the Dummycrats have swallowed it whole.

And while some, like

Dr. James C. Dobson, head of the Focus on the Family ... [say] the agreement "represents a complete bailout and a betrayal by a cabal of Republicans and a great victory for united Democrats,"

others know better. In a press release mockingly titled "Custer Declares Victory! Dewey Wins Presidency! Liberals Claim Defeat of The Right!" the radright group Progress for America declared through its president, Brian McCabe,

"We got what we really want: President Bush's conservative judicial nominees on the bench and an almost ironclad agreement for an up or down vote for any of the president's potential Supreme Court nominees in the future."

So in answer to the question "What else were the Democrats supposed to do," they were supposed to say no. Might Frist have then pulled the trigger? Yes, although I do wonder when push came to shove if enough GOPpers would really be willing to blast a hole in 200 years of Senate tradition; that reluctance was behind Frists' repeated delays in going ahead despite the extremists' pressure on him to do so: He couldn't be sure he had the votes. (Most of them would, yes. But that wasn't the question; the question is would enough do it.) But even if he had, even if he had succeeded, the effective outcome here is not much different and Frist still has the option of going nuclear later.

There is one thing (and one thing only) that offers me some hope that this "compromise" will stay the execution of the filibuster at least for a time, so I'll end with it: An often-ignored aspect of the story was mentioned briefly in an AP story which said the nuclear option "threatened the comity the Senate needs to function." I think in our discussions of the whole affair we have tended to overlook how important it is to senators to maintain that atmosphere, or at least the pretense, of collegial courtesy and tradition. That's part of why I wondered just above if Frist actually could have pulled off the nuclear option. I think that had a lot more to do with producing this "compromise" than we have allowed - and could be a deciding factor in any attempt to undermine it.

Updated with the news that ThinkProgress.org quotes Congress Daily PM as saying:

Senate Majority Leader Frist will file for cloture on President Bush’s nomination of William Myers to the 9th U.S. Circuit Court of Appeals later this week, according to sources on and off Capitol Hill, wasting no time in testing the resolve of 14 Republican and Democratic senators who forced at least a temporary halt to the battle over Democratic filibusters of President Bush’s judicial picks.

That's not really a surprise to me; Frist could hardly do otherwise and still have dreams of riding a radright wave into the White House in 2008. He's already getting really bad vibes from some among the far "religious" right (see Dobson's quote) and has to rebuild his cred. (There's a mixed-generation sentence if ever I saw one!) So the real question is what happens when the cloture motion fails, as it assuredly will. What will those "moderate" GOPpers do when it actually comes down to a choice between the Constitution and the Senate's own established procedures on the one hand and party loyalty on the other?