The Discerning Texan

So the Senate has decided to back down...until an unnamed day down the road...if then... Stinks to high heaven: smells to me like a total cave-in by the Republicans. Hugh Hewitt is not overjoyed to say the least, and his site also has the text of the agreement:

MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS

We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate’s Judiciary Committee.

We have agreed to the following:

Part I: Commitments on Pending Judicial Nominations

A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Part II: Commitments for Future Nominations
A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

[DT Note: Rule XXII I believe is the rule that allows them to change the rules. Fair enough; this indeed may be the legaleese Republican "out", but it smells to me like a Clinton invocation of "is"... I am not a happy camper about this. I think ultimately, it will give the libs ammuntion should they suddenly find an "extraordinary" circumstance..]

We believe that, under Article II, Section 2, of the United States Constitution, the word “Advice” speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.

As I see it, this only delays the inevitable showdown until the intitial Supreme Court nominee comes forth. At that time, I would imagine that the Democrats will suddently see "extraordinary circumstances" once again.

John Hindraker of Power Line agrees that this smells of a Republican sell-out.

Meanwhile Scared Monkeys headline is: "Compromise Reached, Republicans Screwed".

Ace of Spades: "Bipartisan group caves to Liberals"

But the guy that chronicles the source of my own outrage the most is Radio Blogger, who argues for the thing we are supposed to fight to preserve, protect, and defend: the Constitution of the United States:

Deal is up, and the Republicans fumbled the ball.

The deal everyone is scrambling for is up at Confirmthem.com. Good job on their part. Here's the parts where we've shot ourselves in the collective foot again.

B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).

Two judges, who've enjoyed majority support previously in Committee, and have been stalled on the floor, do not get Constitutionally required votes of advice and consent. They get thrown under the bus, all in the name of the Senate moderates being able to eat lunch together without throwing food.
A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

So it's up to those sane members like Ted Kennedy, Robert Byrd, Chuckie Schumer, & Barbara Boxer to exercise discernment and judgment. The Democrats have not exercised good faith up to now, and the Republicans are agreeing to let Lucy put that football down and hold it one more time.
Here's where we really lost, however. Republicans signed their name to an agreement that says nominees should only be filibustered under extraordinary circumstances. That means there are at least 6, and maybe as many at 8 Republicans who either don't have a clue in the world what the Constitution means, or they don't care, because they have to try to work with these people on a daily basis. What these Republicans have done is condone the unconstitutional practice that the Democrats have done. They haven't just cowered away from a fight. They haven't just screwed over two judges for now. They've condoned and ratified a move, with only a 14 member vote. Usually, to amend the Constitution, to put in something that isn't there, you have to have a supermajority vote and have 3/5ths' of the states ratify it. What has happened now is 14 out of 100, or a 14% vote, get to alter the Constitution, and now there is a 60% requirement to approve judges, as long as the Democrats try to pretend to be cooperative in the process.

14% - the new supermajority in the United States Senate. It's now up to 14% to determine which people require 60%.

It stinks.

Thank God the tiki bar is open.

What a bunch of prima donnas: Byrd, McCain, the lot of them. And what exactly did Lindsey Graham think he was doing? Is this what the fine State of South Carolina elected him to do? I am disgusted. It makes me wonder where that money I gave to the RNC is going. Because these guys have put themselves above the Constitution. And McCain thinks he has a hope in hell of winning the Republican nomination, he is in for a rude awakening.

Zell, where are you?

UPDATE: Fellow Texan Beldar hits the nail on the head:

Sometimes you look at the results of a negotiation — supposedly made by bright, well-informed and -motivated adults on both sides — and you shake your head and point to one side the the deal and say: "Them suckers just got robbed blind."

This is grand larceny masquerading as a "deal." Only a complete idiot would think that this —

Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

— is a fair trade for this —

In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

The seven suckers are Senators John McCain (R-AZ), Mike DeWine (R-OH), Olympia Snowe (R-ME), John Warner (R-VA), Lindsey Graham (R-NC), Susan Collins (R-ME), and Lincoln Chafee (R-RI).

Gutless. That's the least profane and most applicable adjective I can come up with to go along with "sucker." Now, "gutless" is a harsh word to apply to a genuine war hero like John McCain. And I don't question his, or any of the other seven's, patriotism. But we're specifically talking about political principle and courage here, and this is a politically gutless act.

These seven, in the "spirit of compromise," have guaranteed that at least two judicial nominees — William Myers (9th Cir.) and Henry Saad (6th Cir.) — will be successfully filibustered. As a direct and intentional result of their "deal," the United States Senate will deliberately violate its constitutional responsibility to either consent, or to refuse to consent, to at least two of the President's judicial nominees.

I don't claim to have thoroughly researched these two nominees — and their comparative merits, or lack of merits, in an absolute sense or as compared to other nominees is frankly irrelevant. I don't know if these two nominees would have, or should have, been confirmed by a simple majority vote. If these same seven senators had voted against both of these nominees — or for that matter, against all seven of the renominated candidates — I might disagree with them, but I would not ridicule and condemn them.

These nominees, and every other judicial nominee submitted by the President of the United States — whoever he may be, of whatever party, because he is the President of the United States — are entitled to that vote. And these two — at a minimum — won't get it.

And in exchange for giving their promise to violate their constitutional duty — their clear, written, unequivocal promise to guarantee that the Senate as a whole defaults on its constitutional duty — these seven senators got exactly nothing. I defy any of these gutless suckers to lay out a scenario in which the "promise" by the Democrats to only filibuster "under extraordinary circumstances" can be enforced, even in the hypothetical "court of public opinion."

Jonah Goldberg writes, "if the Democrats filibuster in something which Republicans don't consider to be an 'extraordinary circumstance' won't the deal be broken and then the Republicans will be free to change the rules[?]"

Umm, no. Whoever drafted this piece of larceny extracted a concession which guarantees that the Republicans can never "cry foul" unless they can plead and prove that the Dems are not acting in "good faith" — and not objective "good faith," as measured by the law's proverbial "reasonable man" standard, but subjective "good faith," as measured by each senator's "own discretion and judgment." No one can ever prove, or even make a compelling argument, that this standard will ever be violated.

Only three are guaranteed not to be filibustered. Two at a minimum will be filibustered. But the important question is: How many more will be filibustered?

Beldar confidently predicts: At least one more judicial nominee will be successfully filibustered in the 109th Congress — specifically, anyone that Dubya nominates to the United States Supreme Court. These seven gutless senators — nominally Republicans — have just handed the Democratic Party an absolute veto over the next Supreme Court nominee, which will likely be for the Chief Justice slot.

At least Jack, of Beanstock fame, could eat the handful of beans if his own fairy tale didn't come true. These seven senators got far less than he did. They got nuthin'.

I'm not surprised. But I'm thoroughly disgusted.