Nuclear (insert pun here) .:. grubbykid.com

Nuclear (insert pun here)

Oh, this is just great. I was all set to write about how violated I felt after watching Star Wars: Revenge of the Sith tonight, but looks like there are more pressing matters. According to Congress Daily PM via Think Progress, Senate Majority Leader Frist is busy breaking the Senate Filibuster Compromise before the ink has dried 24 hours, setting us up for another round of nuclear punnery:

Senate Majority Leader Frist will file for cloture on President Bush’s nomination of William Myers to the 9th U.S. Circuit Court of Appeals later this week, according to sources on and off Capitol Hill, wasting no time in testing the resolve of 14 Republican and Democratic senators who forced at least a temporary halt to the battle over Democratic filibusters of President Bush’s judicial picks.

First off the bat, I'm not sure this move is really attempting to press the seven Republicans into voting for cloture or the Nuclear Option in general. It could very well be purely procedural in order to save face, and not designed to pressure the compromisers. But it sure looks that way. Second, the compromise allows the fourteen to decide for themselves to vote for or against cloture for Myers and Saad but says nothing about the Nuclear Option. Lastly, I'm not even sure if Senate Minority Leader Reid is still filibustering Myers and Saad - I think the Democrats still are.

Alright, so let's assume that Frist filing for cloture is designed to jump start the debate again, and to bring the nuclear option into play (again). Here are some thoughts.

That being said, I'm not so sure that this is actually "breaking his promise" or the compromise, since Frist was not a signatory to the Memorandum of Understanding on Judicial Nominations. When Frist announced the compromise, it is important to remember his words, I have had the opportunity to review the agreement... an agreement that I’ve reviewed but to which I am not a party.

So, the Senator has not broken the compromise - he never signed the contract. And there is much debate (especially at The Corner) on if this is a legally binding document or political theatre. However, he is surely trying to bend it in order to see if those seven Republican Senators will vote in favor of Cloture. This move is very much a test on the compromise and his attempt to regain some level of control over his wayward caucus.

For review, the gist of the compromise reached yesterday (full text here) is divided into two parts: pending nominations and future nominations. Here is the what was pledged for pending nominations, summarized by the Washington Post:

Their agreement calls for Democrats to drop filibusters of three appellate court nominees they have long opposed: Owen, of Texas; Brown, of California; and Pryor, of Alabama. It does not protect two other contested nominees -- William G. Myers III of Idaho and Henry Saad of Michigan -- who will be filibustered or withdrawn, negotiators said.

The Memorandum of Understanding on Judicial Nominations covers Saad and Myers under the pending nominations section - Part I (a):

Status of Other Nominees: Signatories make no commitment vote for or against cloture on the following judicial nominees: William Meyers (9th Circuit) and Henry Saad (6th Circuit).

emphasis added

But - and this is a big but - there seemed to be a "Gentleman's Agreement" that Myers' and Saad's nomination would not be voted upon; for all intents and purposes, their nominations were dead in the water. How firm this agreement is, no one knows; it is a definite "bend point" in the compromise. However, Senate Minority Leader Reid was asked specifically about Saad yesterday during the news conference and said (paraphrasing) Michigan judges are going to be approved — except for Saad, of course. The conclusion that the nomination of Myers and Saad were DOA was fairly widespread when the compromise was announced - even The Corner agreed on this issue.

Where the compromise specifically states that the seven Republican Senators will vote against the ~~Crybaby~~ Nuclear Option is in Part II (b) - the section dealing with future nominations. Here is the text of Part II (b):

Rules Changes: In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

So, it looks like Republican Senators can vote for the Nuclear Option - breaking the Senate Rules by fiat - on the matter of Myers and Saad, without breaking the letter of the compromise. But the spirit (and political agreement) of the compromise would very well be broken, and this is where the compromise could very well fall. This is where Senator First is walking a thin line.

Again, this all matters if the Democrats are still filibustering Myers and Saad - all data points to "yes, the Democrats are filibustering."

If Senator Frist is calling for a cloture vote to end the filibuster for Myers and Saad, it does not bode well for the seven Republicans who agreed to the compromise. It is up to the seven to resist the institutional pressure to vote for the Nuclear Option; especially, by my reading, the compromise clearly says nothing about the Nuclear Option concerning present nominations, but only to future nominations. The spirit of the compromise is clear that the seven would not vote for the Nuclear Option at all, unless the Democrats were not filibustering under extraordinary circumstances.

I hope my reading is wrong (anyone is free to comment on this), but it seems that if Senator Frist aims to change Senate Rules, the compromise does not force the seven Republicans to vote against the Nuclear Option.

Later - The more I think about this, the more I think it is merely a way to save face, let the cloture vote fail, rail on about "up and down votes" and be done with the issue. But who knows - if I were Senator Frist, I would try to get this episode of Senate history over with as soon as possible. But the scenarios and game theory of the last two months are quite tiring, so I'm going to sleep.

Nuclear (insert pun here)

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