No good deed goes unpunished

As we head for a showdown over the filibuster rules (or not), we continue to hear self-proclaimed voices of reason suggesting that both sides share blame, and that President Bush brought this battle on with an uncompromising approach to his appointments. As I’ve pointed out before, however, President Bush actually adopted a conciliatory approach to the process four years ago. At that time, he renominated two Clinton nominees, both African-American. Subsequently, he has continued to use this approach, as when he nominated both Claude Allen (conservative) and Allyson Duncan (not conservative and supported by John Edwards) to the Fourth Circuit. The Democrats have responded by quickly confirming the non-conservatives, blocking the conservatives, applauding themselves for confirming Bush nominees, and complaining about how uncompromising Bush is in continuing to support the conservatives in his package.
Today in NRO’s new Bench Memo feature, Bradford Berenson presents the forgotten history of President Bush’s attempts to cooperate with the Democrats. Berenson was at the White House four years ago. He recalls how, after Bush sent up a slate of 11 eleven nominees including the two Clinton candidates,

they immediately held hearings for, and confirmed, the two Democrats among the nominees and then held up the rest, refusing even to hold hearings for a long time on most of them. They then complained incessantly (and, for the most part, falsely) about not having been adequately consulted by the White House with regard to these nominations. . . This sent the strongest possible message to those of us in the White House that there was no interest at all in cooperation or good faith from the Democratic side and that they were determined from the start to try to frustrate the new president’s efforts to fill judicial vacancies. The Democrats were alarmed that the president had begun by focusing on appellate appointments; that those appointments were concentrated in circuits where the partisan balance was close; and that the president appeared determined to appoint highly qualified minorities and women, such as Miguel Estrada and Priscilla Owen.

I hope that moderate Republican Senators keep this history in mind as the showdown approaches. The president has not acted uncompromisingly. Even his conservative nominees are not “in-your-face” conservatives. That’s why there’s little doubt that, unlike John Bolton, all or virtually all of them would easily be confirmed in an up-or-down vote. Absent real evidence of extremist behavior by the president or his nominees, the only card the Democrats have to play with moderate Republicans is the notion that changing the filibuster rules is itself extreme. But this argument is largely a phony because the filibuster rules have been changed by the Democrats in the past. The real extremism on display here is the unprecedented use of the filibuster to block a dozen or so nominees based on their alleged ideologies.
It’s natural for moderates to want a last-minute compromise. But, as Berenson shows, the administration is already operating from a position of compromise to which the Democrats did not respond in kind. It cannot be expected to compromise what’s still on the table. The Democrats have made it clear that no good deed goes unpunished. To the extent that more compromise constitutes a good deed, the Democrats would punish it by filibustering one or more of the president’s future Supreme Court nominees, regardless of what they might now say on this subject.


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