David Limbaugh

Though even some conservatives disagree, no matter how you spin it, this compromise agreement among the 14 self-anointed Senators is a big loser for Republicans and for the country.
The best way to measure this is to compare what is likely to happen with the agreement in place with what likely would have happened had the agreement not been reached.

 Republicans received only one "concession" in the deal: Democrats agreed not to filibuster three judges, Janice Rogers Brown, William Pryor, and Priscilla Owen. But many believe Republicans had sufficient votes in the Senate, especially with Vice President Cheney's tie-breaking vote, to prohibit the practice of filibustering judicial nominees altogether. So the so-called concession was not a victory at all, but a net loss. (Note also that Democrats didn't agree to vote for these three nominees, just not to prevent -- unconstitutionally -- the full Senate from voting on them.)

 The milquetoast sham document recites that its fourteen signatories were upholding the "traditions of the Senate," but they did precisely the opposite. The Constitution contemplates that all the president's judicial nominees be voted on by the full Senate, not that a militant minority can hold hostage the majority and thwart the will of the people.

 The fourteen might as well have said, "We'll agree not to violate the Constitution on a measly three appointments, provided we expressly reserve our right to thwart the Constitution in every other case.

 The signatories' promise to filibuster nominees only under "extraordinary circumstances" doesn't make this poison pill any easier to swallow. It is what we refer to in contract law as an illusory promise. Not only is "extraordinary circumstances" not defined; the next clause expressly gives the green light to each signatory to "use his or her own discretion and judgment in determining whether such circumstances exist."

 Some incorrigibly naive conservatives say Democrats won't be able to get away with blocking "conservative" judges in the future, having agreed not to block Brown, Pryor and Owen, who everyone agrees are originalists and "conservatives." But Democrats can simply say that by agreeing not to block a vote on these three, they weren't conceding the nominees weren't "extraordinary," but that they were an acceptable, short-term compromise in exchange for the right to block similarly conservative nominees in the future.

David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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