Maybe the deal will fly’ for now, the Senate lives

The filibuster deal recalls the story of the man who escapes his execution by promising the king that he will teach the royal horse to fly in a year. The man has no special powers, but he reasons that in a year the king could be dead, the horse could be dead, he could be dead or maybe the horse will fly. In the meantime, he lives. Critics of the filibuster deal say that it is no permanent solution, but a flawed compromise that kicks the can down the road to a possible future confrontation. All true, but the deal is just what the Senate needed.

The filibuster deal recalls the story of the man who escapes his execution by promising the king that he will teach the royal horse to fly in a year. The man has no special powers, but he reasons that in a year the king could be dead, the horse could be dead, he could be dead or maybe the horse will fly. In the meantime, he lives.

Critics of the filibuster deal say that it is no permanent solution, but a flawed compromise that kicks the can down the road to a possible future confrontation. All true, but the deal is just what the Senate needed.

Democrats and Republicans had backed themselves into a corner. Democrats had regularly used a tactic that was almost unheard of, filibustering judicial nominees, and attempted to establish a 60-vote threshold for any nomination with which they disagreed. Republicans, in seeking to abolish judicial filibusters with a parliamentary tactic that was an end-run around the rules, threatened to move the Senate toward being a simple-majority body barely distinguishable from the House of Representatives.

The fact that some independent senators could buck their parties’ leadership and forge an agreement on their own demonstrates that the Senate is a unique institution, one where leaders and party are not all-powerful. But while a deal was possible, it was still the hard work of 14 senators that pulled the Senate back from the brink, at least for now, and they deserve the highest credit.

What does the deal do? It guarantees up-or-down votes on three of the most contentious nominees — Janice Rogers Brown, Priscilla Owen and William Pryor — because seven Democrats have pledged to support cloture. It effectively denies such a vote on Henry Saad and William Myers.

The tricky part of the deal regards the limitation of future filibusters and of the exercise of the “nuclear” or “constitutional” option. The seven Democrats have pledged not to filibuster future judicial nominees, with the exception of “extraordinary circumstances.” Seven Republicans have committed not to change filibuster rules for the remainder of the 109th Congress, although there is also some ambiguity in their commitment because it is made “in light of the spirit and continuing commitments made in this agreement.”

The bottom line is that 14 senators have an agreement based on trust. There is no one to enforce the deal but the senators themselves, although there are a number of forces that will work to keep the deal intact.

These 14 senators have been severely criticized by the bases of their own parties. Why would they go through a public confrontation again? If these Democrats vote to invoke cloture on future nominees, they will again be criticized, but the criticism will be much less than if it were to escalate into a public showdown between the parties again. Similarly, Republicans would be criticized if they stood by while Democrats filibustered a single future extremely controversial nominee, but again it would be nothing compared to their current notoriety.

Further, the fact that there are 14 signatories to the deal gives both sides a little wiggle room. Not one but three of the seven Democrats would have to agree to filibuster a future nominee to defeat a cloture motion. And a minimum of two of the seven Republicans would have to break their commitment not to change the filibuster rule for that to occur. There are also additional senators on both sides, who were not signatories to the deal, who might step in to keep the deal if there were defections.

Finally, due to the illness and potential resignation of the chief justice, many anticipate that we may have a Supreme Court vacancy this summer. It is hard to imagine that there will be a filibuster over a Supreme Court nominee. Democrats controlled the Senate during the Clarence Thomas nomination, and he was narrowly approved, 52 to 48. They could have killed his nomination with a filibuster.

With the spotlight of the national media on the moves of every senator, would Democrats unite to filibuster a Supreme Court nominee after all of this talk of forswearing the filibuster? Some of the seven Democrats might well vote against final confirmation of a justice, but the likelihood of a concerted filibuster is slim.

There are many who are not best-served by the deal. Saad and Myers were thrown under the bus for the sake of other objectives. Minority Leader Harry Reid (D-Nev.) could not prevent the confirmation of several nominees his party found most objectionable. Least well-served was Majority Leader Bill Frist (R-Tenn.), who was expected by conservative groups to act as a Speaker of the House, ramming through all of President Bush’s nominees. The fact that some nominees will not get that vote and that a deal was cut without his backing may make him look ineffective to conservative voters who will dominate the presidential primaries in 2008 should Frist seek the presidency.

But the Senate was a winner. It will live, more or less intact, for another day. Who knows what will happen this summer or next Congress? Maybe the horse will fly.

Fortier is a research fellow and executive director of the Continuity of Government Commission at the American Enterprise Institute.