We've Saved the Republic!

05/25/2011 11:45 am ET
  • Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago

Fourteen senators have averted a crisis over the filibuster. But who won? In a society consumed by winning and losing, we have to know. Who won?

The Republicans ensured the confirmation of three Bush nominees whom the Democrats have repeatedly described as outside the "mainstream." Score three for the Republicans.

The Democrats promised not to filibuster any Bush judicial nominee in the absence of "extraordinary" circumstances. But the filibuster should in any event be used only in extraordinary circumstances. So, score three for the Democrats -- they gave up nothing they would have insisted upon anyway.

The Republicans promised not to vote for the "nuclear option" for the remainder of this Congress, or until January 2007. Score ten for the Democrats.

But who gets to define "extraordinary"? Would a Democratic filibuster of the four pending (I would say "outstanding" but that would be wrong) "outside the mainstream" Bush nominees be acceptable under the May 23 agreement? Or would the Republicans consider this a breach of contract? My guess is that the Democrats would have a very hard time filibustering these four nominees without opening themselves up to the charge (fair or not) that they were violating the agreement. Even if the seven Republicans who signed the agreement were to define those nominees as "extraordinary," other Republicans would surely skewer the Democrats if they attempted to block these nominees with a filibuster. Score four for the Republicans.

What if Bush continues to nominate "out of the mainstream" judicial candidates? The Democrats have put themselves in a position in which any use of the filibuster against a lower court nominee will be attacked as a breach of the May 23 agreement. Faced with such accusations, the Democrats will be more passive than they have been. Score six for the Republicans.

Finally, we come to the big enchilada. What happens if Chief Justice Rehnquist resigns in June, at the end of this Term? Clearly, Bush will nominate Antonin Scalia for the position of Chief Justice. This will dare the Democrats to filibuster. But they won't. As much as Scalia infuriates them, the Democrats will understand that this isn't the appointment that matters. What really matters is who fills the vacancy on the Court. A filibuster of Scalia would waste the Democrats' firepower. If they were foolisn enough to take that bait, they would then be unable to filibuster Bush's next nominee -- in part because the Republicans would surely invoke the "nuclear option" after the Democrats had already taken one bite at the apple.

So, once the Democrats swallow hard and allow Scalia to be confirmed as Chief Justice by a vote of 55 to 45, we will finally get to the nomination that matters. Who will fill Scalia's seat as the new Associate Justice -- the real Rehnquist replacement? This is where the May 23 deal kicks in. This agreement will prevent Bush from nominating a truly "out of the mainstream" justice. (Of course, the mainstream is in the eye of the beholder.) The threat of a filibuster, which the Democrats would certainly use in this situation, will cause Bush to moderate his choice. He will nominate someone very, very conservative, but not truly terrifying. Score three for the Democrats.

Final score: Democrats 16, Republicans 13. Or not.