Adam White and Kevin White argue in the Weekly Standard that John McCain’s critics are misguided to the extent they take him to task for joining “the Gang of 14.” That Gang, of course, thwarted implementation of the “nuclear option” for preventing the filibuster of judicial nominees, while ensuring that there would be no filibuster of several very controversial nominees, who were then confirmed.

The main argument presented by White and White is that the nuclear option was probably going to be defeated regardless of McCain’s position. Indeed, they say that Senate passage “would have required the political equivalent of drawing to an inside straight in poker.” Thus, the defense of McCain goes, it made sense to reach a compromise under which judges such as Janice Rogers Brown and William Pryor would be confirmed, and the way paved for the confirmation of President Bush's Supreme Court nominees.

But if McCain had supported the nuclear option, the chances of its passage would have been quite good. Adoption of the nuclear option depended on losing no more than five Republican votes. As White and White say, Lincoln Chafee and Olympia Snowe were opposed and Lindsey Graham, Mike DeWine, and Arlen Specter were on the fence. Other possible defectors were John Warner, Susan Collins, and Chuck Hagel. McCain and Graham are pretty much joined at the hip, so McCain’s support probably would have brought Graham along. Without the cover of McCain and Graham, it’s also difficult to imagine Mike DeWine aligning himself with the liberal wing of his party. Had Graham and DeWine supported the nuclear option, it would have been the Dems who were drawing to an inside straight. They would have needed the vote of every wavering Senator or at least one “surprise” vote.

Enacting the nuclear option would have meant the quick confirmation of several well-qualified court of appeals nominees who ultimately were blocked by the Democrats. Moreover, President Bush could have nominated additional judges with similar philosophies, and these judges would also have been confirmed through 2006.

If, against the odds, the nuclear option had failed, several appeals court nominees who were confirmed might not have been. However, it’s pretty clear that John Roberts and Samuel Alito would have been confirmed, given their stellar credentials and outstanding performances before the Judiciary Committee. If the Dems had filibustered either one, it’s likely that the nuclear option would have been placed back on the table and, if that didn’t do trick, adopted.

White and White point out, however, that with the Democrats now already in control of the Senate and in a position to capture the White House, it’s actually a good thing the nuclear option isn’t in place. This, I think, is their best argument. But it assumes that, if the Republicans use the filibuster to block the judicial nominees of a Democratic president in the future, the Democratic Senate won’t adopt the nuclear option or use the threat of doing so to severely limit Republican filibustering. Unless one is prepared to make that leap of faith, conservatives aren’t being unfair when they criticize McCain’s participation in the Gang of 14.

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Posted by Paul at 5:20 PM  |    |