For Democrats, "extraordinary circumstances" means a nominee whose views are too extreme. Senate Minority Leader Harry Reid, D-Nev., argued, "There's nothing in anything that was done last night that prevents us from filibustering somebody that's extreme." And Democratic National Committee Chairman Howard Dean said, "If that person is an extreme judicial activist ... then we need the right to stand up and say 'No.' "
Republicans have a different understanding. Didn't the Democrats just agree not to filibuster three staunchly conservative nominees? "I can tell you that Judge [Janice Rogers] Brown, Judge [William] Pryor, and Judge [Priscilla] Owen are going to get strong bipartisan support," said Sen. Lindsey Graham, R-S.C. "The fact that you are conservative is no longer an extraordinary circumstance."
Republicans contend that the agreement makes it harder for Democrats to use the filibuster. "We had reached a point where the Democrats were filibustering judicial nominees relatively routinely," said Bradford Berenson, associate White House counsel during President Bush's first term. "I don't think they can get away with that any longer, in light of this agreement."
At the same time Democrats have retained the right to filibuster, Republicans have retained the "nuclear option" of barring filibusters against judicial nominees. Sen. Mike DeWine, R-Ohio, who signed on to the deal, said, "If any one of us feels that any of the members are filibustering in circumstances that are not extraordinary, we have the right to invoke the constitutional option that we were about to vote on today." He added, "The goal was to get back to the Senate we had a few years ago, when filibusters ... would only be used in very rare circumstances."
If the Democrats do filibuster a Bush nominee to the Supreme Court, Senate Majority Leader Bill Frist, R-Tenn., will be under enormous pressure to trigger the nuclear option, especially if he wants to run for president in 2008. The Union Leader in Manchester, N.H., wrote last week, "If [Frist] cannot effectively lead 55 Republican senators, how can he be trusted to lead the party and the country three years from now?"
Two self-described "old bulls" of the Senate—John Warner, R-Va., and Robert Byrd, D-W.Va.—played a crucial role in drafting the compromise. Warner and Byrd tried to ascertain how banning judicial filibusters would affect the interests of the Senate. Warner asked, "How would that [change] have strengthened the Senate, further preserved the hallmark of this institution—namely, the right to preserve the minority voice?"
Their conclusion: It wouldn't. "The nuclear, or so-called constitutional, option would have destroyed the Senate as a forum for freedom of speech, for freedom to dissent, as a forum for the protection of minorities," Byrd declared. So they drafted the terms of the deal, whereby 14 members preserved the Senate's unanimous-consent tradition.
Three days later, the deal looked a little shaky when the minority blocked a vote on John Bolton's confirmation to be United Nations ambassador. "It looks once again like another filibuster," Frist complained. The somewhat embarrassed Democrats insisted they were not really trying to kill the Bolton nomination. "We're not here to filibuster Bolton," Reid said. "We're here to get information on Bolton." And the deal made by the 14 senators dealt only with judicial nominations. McCain noted that blocking Bolton "does not affect, except psychologically, the agreement we made earlier on preventing the nuclear option on judges."
The old bulls argued that the deal to retain the Senate filibuster actually protects presidential power—even if the current president doesn't seem to want to be protected. "I've always looked at the filibuster rule as a protection of the president from the extremes of his own party to force upon him a certain nomination," Warner said.
What the old bulls were most protecting was the Senate and its tradition of bipartisan consensus. But there doesn't seem to be much of a constituency for that tradition outside the Senate. Remember the battles over the Supreme Court nominations of Robert Bork in 1987 and Clarence Thomas in 1991? The next battle could be worse.
Berenson pointed out, "The last time there was a Supreme Court confirmation battle was prior to the age of the Internet, prior to the age of the bloggers, prior to the age of the 24-hour news cycle." In those earlier battles, the filibuster was not used. Nor was the nuclear option invoked. Now both weapons are on the table.
What's to prevent all hell from breaking loose? In the view of Sen. Ben Nelson, D-Neb., an organizer of the compromise, "The key is developing this mutual trust and respect and being guided by good faith." Faith-based politics? That's what will be needed if the filibuster compromise is going to work.