With Samuel Alito on his way to the Supreme Court where he will join John Roberts, and with Judges Pryor, Brown, and Owen are ensconced on one court of appeals or another, TigerHawk argues that conservative blogs like Power Line were too harsh on the deal brokered by the gang of 14. TigerHawk is right. The deal has turned out better than I expected.
That doesn’t mean it was a good deal. In its absence, all of the above-mentioned nominees would have been confirmed along with several other excellent ones whom the Democrats continue to block (like Brett Kavanaugh and Jim Haynes). Moreover, if Justice Stevens is replaced during the next Congress, and the Republican majority is reduced in November, we may regret that the filibuster option is still on the table. Finally, the failure to remove that option may have contributed to the nomination of Harriet Miers, which many conservatives consider a train wreck narrowly averted.
Ultimately, though, a case can be made for preserving the right to filibuster judicial nominees provided that the right is exercised responsibly. And even if one doesn’t accept that case, it’s difficult to get too agitated about the preservation of the filibuster option absent a pattern of abuse or evidence that the president now is backing away from strong conservative nominees. So far, we haven’t seen either phenomenon to an appreciable degree.
JOHN adds: Whether a deal is good or bad depends on what you assume the alternative is. Given that the Republicans control 55 Senate seats, there is, in principle, no reason why a Republican President should not be able to get all reasonably qualified nominees confirmed. And all of President Bush’s nominees, to my knowledge, have been more than reasonably qualified.
The Democrats could have filibustered one or more nominees, of course, but it’s clear they didn’t want to do that. There is no precedent for it, the public had no appetite for it, and the Republicans had the numbers–on paper–to override the filibuster by revising the rules.
So it’s still hard for me to see the “Gang of 14” compromise as a good deal. If seven Republicans struck a compromise because the party’s position was threatened by possible defections from some other quarter, that would be one thing. But here, who were the possible defectors? None other than the Gang members themselves.
So I’m not cheering on the Gang, even in hindsight. With reasonable party discipline, all of the judges who have now been confirmed would have been confirmed, plus several more. Having said that, I’m delighted to admit that things have turned out better than I feared. The compromise wasn’t as good as a principled stand against the judicial filibuster, but, thankfully, it hasn’t done as much damage as I thought it would.
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