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.