Article II of the Constitution of the United States states that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ? Judges of the supreme Court ?" This means that the Senate shall either consent or refuse judicial nominees -- it shall give each nominee an up-or-down vote. It does not mean that a handful of minority senators may hold up the entire process by filibustering nominees.
The so-called "nuclear option," by which Senate Republicans would have sought a rules change to prevent filibusters on judicial nominees, is therefore not only fully constitutional, but more in line with the spirit of the document than minority obstructionism. And yet Monday night, a handful of Senate Republicans decided to undercut their colleagues and a group of well-qualified judicial nominees by surrendering to Senate Democrats.
A new "deal," created by 14 senators, allows for the Democrats' continued use of filibusters in "extraordinary circumstances," and pledges Republican senators not to vote in favor of a rules change. Defining the term "extraordinary circumstances" is to be left to individual senators -- meaning that Democrats lost nothing by their obstructionism, and Republicans lost everything. Yes, a few of President Bush's judicial nominees will reach the Senate floor: Priscilla Owen (who has been waiting in line for over four years), William Pryor (more than two years), and Janice Rogers Brown (22 months) will all be confirmed. But many more will not, and the Republicans just threw away their only remaining weapon.
So in this political game of chicken, it is the Democrats who emerge victorious. It is the Republicans who cover themselves in shame. Here are the big winners and losers in this, the most important political battle in recent memory.
Sen. Harry Reid (D-Nev.) -- Reid played the Republicans like fish here. He breached Senate protocol -- and plain decency -- by implying that FBI files on judicial nominee Henry Saad contained damning material. He called President Bush a "loser" and obstructed for months on end. Now, Reid is smirking for the cameras, and Democratic National Committee Chair Howard Dean is chuckling that the deal was "a huge loss for the right wing" and for the president.
Sen. John McCain (R-Ariz.) -- McCain's "maverick" credentials are intact. The media love him, and he certainly loves the media more than either his base or his principles. McCain's side-dealing highlights him as a rival to President Bush and the real leader of the Senate.
Sen. George Allen (R-Va.) -- With McCain's backstabbing and Senate Majority Leader Bill Frist's weak-kneed schoolgirl routine, Allen (who immediately condemned the deal) now emerges as the Republican senator with the best shot at the 2008 presidential nomination.
Janice Rogers Brown -- By explicitly allowing Brown onto the D.C. Circuit Court of Appeals, Democrats have painted themselves into a corner if she's nominated for the Supreme Court. It will be difficult to cite "extraordinary circumstances" to filibuster her once she's already received an up-or-down vote.
President Bush -- He's relegated to choosing second-tier candidates for his judicial nominations and fuming about judicial activism. So much for "spending political capital."
Sen. Bill Frist (R-Tenn.) -- Majority leader? What majority leader? McCain made Frist look foolish and probably prevented Frist's ascent to the Republican presidential nomination in 2008. Frist should have pushed the nuclear option sooner and whipped his senators into line. Now he's left an emergency message with Fox's "Nanny 911."
Sen. John McCain (R-Ariz.) -- McCain better enjoy his glory now because he will never win a Republican presidential primary. Ever. From campaign finance reform to judicial nominees, from flirting with John Kerry to criticizing President Bush, McCain has amply demonstrated that he is unfit to run on a national ticket with an "R" next to his name.
The Republican Party -- Never has a majority party proved to be so spineless. Republicans, lest we forget, constitute 55 out of 100 senators and have the power to do what they please. Instead, they capitulated. It is now crystal clear that unless Republicans own almost 60 seats, rules will not be changed; unless Republicans own almost 70, cloture will never be invoked on a major issue. If that doesn't discourage the Republican base, nothing will.
The American people -- Hope everyone out there likes Sandra Day O'Connor, Anthony Kennedy and David Souter, because whoever replaces Justices Rehnquist, Stevens and Ginsburg will likely look more like those three faux-Constitutionalists than like Antonin Scalia or Clarence Thomas. You can thank McCain and Co. and the gutless Republican leadership as America is force-fed pure European liberalism through the unchecked hand of judicial review.