David Brooks nonsense on the Reid filibuster proposal

One of the big issues facing the country right now, as it has been for the past couple of years, is the tyranny of the judiciary, and the "nuclear option" that Senate Democrats have chosen, as they exercise unprecedented filibusters on President Bush's circuit court nominations. Today David Brooks has a piece in the New York Times describing a "deal" that Harry Reid allegedly offered Bill Frist in order to get some of the judges through. I've like some of what David Brooks has written (there was an excellent piece on the political ramifications of Roe v. Wade less than two weeks ago, for example), but this article today is utterly ridiculous.

Bill Frist should have taken the deal.

Let's assume, for the sake of discussion, that the deal outlined was, in fact, offered.

Last week, the Senate Democratic leader, Harry Reid, made an offer to head off a nuclear exchange over judicial nominations. Reid offered to allow votes on a few of the judges stuck in limbo if the Republicans would withdraw a few of the others.

There's the first glaring problem right there. If they pull back any one of the filibustered judges, it will be read and played by the media as a concession, as an admission that the Democrats were right about the "extremism" of the Bush judicial nominations. They're not. They're wrong. There's not a single piece of evidence to support their claims on any one of the judges, and pulling any of them back would undeniably send the wrong message. It's impossible to take any of the rest of it seriously, because the Democrats win before anything else happens.

But there was another part of the offer that hasn't been publicized. I've been reliably informed that Reid also vowed to prevent a filibuster on the next Supreme Court nominee. Reid said that if liberals tried to filibuster President Bush's pick, he'd come up with five or six Democratic votes to help Republicans close off debate. In other words, barring a scandal or some other exceptional circumstance, Reid would enable Bush's nominee to get a vote and probably be confirmed.

I don't know whether or not Bill Frist trusts Harry Reid. I certainly don't. I'm not aware of any reason that Frist should.

But look at that again. "...barring a scandal or some other exceptional circumstance..." (emphasis mine). What, exactly, would the Democrats consider an "exceptional circumstance"? Failure to pledge fealty to Roe v. Wade?

Reid couldn't put this offer in writing because it would outrage liberal interest groups. Frist said he'd think about it, but so far he's let it drop - even though clearing the way for a Supreme Court pick is one of the G.O.P. goals in this dispute.

So Reid can't put it in writing because his own supporters would never approve, yet Brooks thinks Reid can buck those supporters on a pro-life Supreme Court nomination? Please.

As to "clearing the way for a Supreme Court pick" being one of the GOP goals, changing the filibuster rules accomplishes that just as neatly and cleanly as this bogus deal, does it not? Without smearing some of the Bush circuit court nominees in the process.

Speculation about why Frist has let it drop goes in different directions. Perhaps he didn't know if he could trust Reid to make good on his promise. Perhaps he didn't think he could sell this agreement to his own base without publicizing this private part of the deal. Perhaps he wants to keep this conflict going to solidify his support among social conservatives for his presidential run. Perhaps he believes as a matter of principle the judicial filibuster must be destroyed.

Maybe he thinks all four. At least three of the four are rational and good reasons.

At any rate, it's now more likely that Republicans will go ahead and change the filibuster rules, and Democrats will begin their partial shutdown of the Senate.

(Cue "Battle Hymn Of The Republic", followed by the Hallelujah Chorus...)

But Frist should have grabbed Reid's offer. He should have done it, first, because while the air is thick with confident predictions about what will happen if the nuclear trigger is pulled, nobody really knows.

The "nuclear trigger" has been pulled. The Democrats pulled it. They changed the rules of confirmation to requiring a super-majority. The Republicans "constitutional option" is to change the de facto rules back to simple majority confirmation.

There is a very good chance that as the battle escalates, passions will surge, the tattered fabric of professionalism will dissolve, and public revulsion for both parties will explode.

Right. The professionalism of the Democrats in the Senate, led by Robert Byrd and Ted Kennedy, will dissolve.

Let me tell you, David, I'm willing to take that risk.

If you are leading one of the greatest democratic institutions in history, it's irresponsible to lead it into this bloody unknown if a deal on the table will give you much of what you want.

Does it? If you have to essentially concede that 3 of the President's nominees are too radical to sit on circuit courts, and all you get in return is an unwritten pledge that Harry Reid will help confirm a Supreme Court nominee absent "exceptional circumstance", are you getting "much of what you want"? Are you getting anything at all?

As one senator who supports changing the filibuster rules says, "Is this what you want on your obit?"

If he's not willing to have it in his obituary, he shouldn't have the job - he should stand down and let someone else have the post, someone's who's willing to do the right thing.

Second, Frist should have grabbed this offer because it's time for senators to re-establish the principle that they, not the outside interest groups, run the Senate. Right now, most senators want to avoid a meltdown. It's the outside interest groups that are goading them into the fight.

This is childishly naive. Giving in to PFAW and NARAL and the ACLU on the circuit court nominations is going to somehow prevent them from fighting and exerting influence on a SCOTUS nomination? I don't know what color the sky is in David Brooks' world, but it's certainly not the same as mine.

Of course the groups want a fight. The activists get up every morning hoping to change the judiciary, dreaming of total victory. Of course they're willing to sacrifice everything else for that cause. But senators are supposed to know that serving the interest groups is not the same as serving the people: it is serving a passionate but unrepresentative minority of the people. At some point, leaders are supposed to stand up to maximalists, even the ones they mostly agree with.

Oh, I get it. The Democrats fealty to their interest groups is OK, but if the Republicans are doing what their interest groups want to see, it's a bad thing. So they're wrong but OK, we're right but "serving a passionate but unrepresentative minority."

Finally, it's time to rediscover the art of the backroom deal. There are two ways the Senate can work. The Senate could be a legal battleground in which the two parties waged all-out struggles to rig the procedures so they got what they want. In this model, the Democrats would go on abusing the filibuster until the Republicans muscled through procedural changes.

Or the Senate could be the home of informal arrangements. In this model, leaders of the two parties would get together - yes, often in secret - and make reasonable bargains. They would rarely settle things on pure principle, but they'd hope for agreements in which each side achieved a portion of its goals. They wouldn't try to decide once and for all whether the filibuster was good or evil. They'd allow it, within reason. This backroom deal-making model went out of fashion after Watergate, but it is much better than what's come since.

I write a lot about baseball, and one of the discussions that has taken place several times over the past couple of years is whether and how the Red Sox front office could, or should, have made deals with Nomar Garciaparra and Pedro Martinez. And what I keep coming back to is this - it takes two sides to make a deal. If Bill Frist and the Republicans cave on their circuit court nominations and in the process get an ironclad guarantee that a Supreme Court nomination would go through smoothly, that would be worth considering. But that's not what Frist would be getting with this deal as outlined. And I wouldn't believe it, whatever Harry Reid claimed. The Democratic Senators who would vote on cloture are going to be getting a lot more money and support from People For The American Way and NARAL and Moveon.org than they are from Harry Reid.

The deal Reid was heading toward, and the deal that other senators like Ben Nelson are still working toward, would give Democrats some say over confirmations. But it would give Republicans up or down votes on most nominees, including the big ones, for the Supreme Court.

The Democrats have "some say" over confirmations. They've got the ability to vote "yes" or "no". They don't wnat "some say" - they want definitive say. If they want definitive say, they need 51 votes. They don't have that. Why should the Republicans have to pretend that they do?

Sometimes statesmanship isn't television combat. It's just a clever wink and a prudent nod. It's just possible that Bill Frist and his colleagues might have something to learn from the spirit of Henry Clay.

It takes two sides to make a deal. Even if this were a great deal for the Republicans, which it isn't, it's only a great deal if the Democrats can be trusted to keep their end of it. And they can't.