Constitutional Duty Averted

Phew! That was a close one! The senate almost made a rule that would require its members to do their constitutional duty. Good thing we averted that crisis.

What horse pucky.

I don't have a whole lot to say that hasn't been said by others. Just a few points:

I disagree with those conservative commentators (and apparently 7 Republican senators) who think the compromise is a good thing because the majority party will not have to face the public opinion backlash of a rule change. What public opinion backlash? The public at large understands that 1) the senate checks the executive by voting yes or no on his judicial appointments, and 2) majority rules. Those who believe there would have been backlash simply bought into the substance-free sophistry of the obstructionists, or at least believe that the American people have. I don't believe that's the case.

I could fisk some of that sophistry (particularly the senseless garbage coming from Harry Reid) here but it would be a waste of space. When the nominees are confirmed by overwhelming majorities, the public will see who really controls the Democratic party and how their objections (out of the mainstream, radical right wing, etc.) mean nothing.

The "extraordinary circumstances" clause: Maybe it's just that my bar prep software is currently stuck on the topic of contract law, but this provision of the agreement seems to render the Democrats' promise illusory. It's not defined, and there has already been comment from the left to the effect of "a Supreme Court nominee is, by definition, an extraordinary circumstance." The far left obstructionists will not have a hard time concocting some "extraordinary circumstances."

The preservation argument: Some were opposed to the "nuclear option" because it would mean that Republicans could not filibuster in the future if they found themselves in the minority with a Dem President. The only way that position is at all principled is if the holder is not opposed in any way to what the Democrats are doing. I don't think that's the case.

And let's not forget The Constitution: The President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges. . .." That consent comes in the form of a yay or nay vote on the nominee. In my mind, if the Senate fails to vote on a nominee after a reasonable amount of time, the Senate's tacit consent is implied in fact. That may just be the litigator in me - you raise your objection or you waive it.

This agreement is a temporary solution. This is a real fight we will have to face eventually. It's saddening that the GOP couldn't face it with some cajones the first time up... because it will never be easier.