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Tuesday, May 24, 2005

How the Republican MOA signers can defend voting for the nuclear option

In the comments of the two proceeding posts, I've had a lively debate with those who confidently insist that the Memorandum of Agreement permits — nay, guaranteees, as they read it — each Republican signer the right to dishonor his/her (political, moral, nonlegal) commitment to vote against the nuclear option for the balance of the 109th Congress. At least two of the signers, Sens. DeWine and Graham, also make that assertion. And so do political pundits whose opinions and credentials I respect.

Among the last group is Ed Whelan, who writes:

Some folks appear to be of the view that Republican signatories are obligated to accept the legitimacy of any determination by a Democrat signatory that "extraordinary circumstances" exist. I have no intention of defending the anti-cloture reform agreement, but I believe that it says exactly the opposite. The provision that states that "each signatory must use his or her own discretion and judgment in determining whether such circumstances exist" means that a Republican signatory is fully entitled to determine that "extraordinary circumstances" do not exist and that a Democrat signatory's contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory's determination of "extraordinary circumstances."

Like me, Mr. Whelan's a lawyer, and he has fabulous credentials that far exceed my own. But for all the reasons I've run through in my original post and its comments (here, here, and here), I firmly believe that the MOU, fairly construed, on its face absolutely omits the "out" that Mr. Whelan and those arguing his side perceive, and in fact that the MOU's clear, unambiguous language precludes that construction.

But the dogged persistence of obviously intelligent people like Mr. Whelan in sticking to their construction — whether it's right or wrong in some absolute sense — suggests to me that if Sens. Graham or DeWine decide it's in their personal political self-interests to vote in favor of the nuclear option anyway, the resulting fall-out will be less than I originally predicted. Whether Mr. Whelan's argument is right or wrong, I don't doubt its sincerity — and must credit its potential effectiveness as, at a minimum, a smokescreen for Republican signers to retreat under. I, personally, couldn't and wouldn't make that argument with a straight face in either a court of law or the court of public opinion. But the issue is whether the Republican signers can, not whether I can, and it will only be the court of public opinion that counts. A split verdict from the public — confusion — may give them enough cover to backtrack if (I think it's actually when, but I'm a cynic) the signing Dems declare that a nomination presents "extraordinary circumstances" and therefore they're free to filibuster.

Posted by Beldar at 06:52 PM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink

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Comments

(1) Jon Sandor made the following comment | May 24, 2005 7:27:18 PM | Permalink

beldar

Setting aside all the semantic hair-splitting for a moment, isn't there something a little odd about all the people on the other side insisting that, no, the Republicans gave up nothing in this, while we vehemently insist that yes, the Republicans did indeed give up everything?

I mean, normally you would expect people to make the best case for their own position, not for their opponents. Very odd behavior all around. Hopefully we will back off a bit before the Democrats give in and accept us at our word on this.

(2) Dafydd made the following comment | May 24, 2005 7:52:10 PM | Permalink

I, personally, couldn't and wouldn't make that argument with a straight face in either a court of law or the court of public opinion.

Rem acu tetigisti, Beldar... this goes to the very heart of my point: you would make a lousy politician precisely because you are a man of integrity, decency, honesty, and you keep your word.

You might well make an excellent statesman in the mold of Washington or Franklin or Reagan; but as a politician, I think you would fall short.

Turning on a dime holds no terrors for politicians, nor does giving their word then reneging. They even have a persuasive case for doing so: if they discover that their given word would work against the interests of their constituency, the constitutional duty should take precedence over the personal abasement.

Should the Seven Dwarfs have signed this horrible so-called "compromise?" Absolutely not, because it is in essence a blank slate: it's meaningless absent the context, like a promise to "reform" politics, eliminate "corruption," and get rid of "waste, fraud, and abuse" -- until those terms are defined (and they are defined by the very action of fighting or ignoring them), we have no idea what any of it means.

So too with this Memorandum of Agreement: until we see who the Dems will filibuster, we have no idea what "extraordinary circumstances" means. And until we see the Republican response to an obviously ideological Democratic filibuster, we have no idea what "continuing commitments" means!

In any event, even having signed onto this cockamamie MOA, if the Democratic shenanigans cause some of the Dwarfs to wake up and pull out, even if that means violating their word in some moral sense -- well, I say hallelujah! Vote for the Byrd option, and all will be (mostly) forgiven.

Dafydd

(3) ed made the following comment | May 24, 2005 8:18:59 PM | Permalink

Hmmm.

Promises to constituents can be forgotten at will. Promises on the Senate floor have consequences if broken. Remember all that "comity" nonsense?

Frankly I agree with Beldar. I've read and re-read the agreement and what I don't see is a corresponding out for the Republicans. I see one set aside specifically for the Democrats, but not for the Republicans. If the Republicans are assuming that there is one, then they will have to face the commentators on national television who will attack them for their lack of character, lack of credibility and their forsworn word.

Just the thing to have going into a Presidential election.

(4) vnjagvet made the following comment | May 24, 2005 8:26:08 PM | Permalink

Beldar:

This sounds like what happens to me on occasion when taking a position in a contract dispute and my client "knows" he/she has an "out" that he/she carefully "thought through" while negotiating a deal sometimes with and sometimes without an attorney at his/her side.

He/she/they all give me a negotiating history argument that they believe conveys the intent of the parties, and (incidently) directly contravenes the plain meaning of the words in the contract.

Man that's a tough situation to be in.

Kinda like when the legislative history contravenes the language in a statute. When I started practicing (40+ years ago), the black letter law was plain language trumps legislative history. As we all know, much lip service is given that rule today, and some pretty famous scholars argue and Supreme Court Justices rule exactly the opposite to the consternation of Justices Scalia and Thomas, who are about the only purists left on that rule.

With all of this going on even in Supreme Court jurisprudence, small wonder that politicians are not impressed by the plain meaning rule.

As a famous former law professor swore and deposed,"it depends on what the definition of "is" is".

I wonder whether he ever tought Contracts?

(5) ed made the following comment | May 24, 2005 8:53:16 PM | Permalink

Hmmmm.

1. I'll say this much. Those Democrats are some slippery bastards.

2. I'm not a lawyer, but I know enough to know that I don't know enough. Which I know puts me in the "Sound like Rumsfeld for day" prize. But I used to be a contract programmer and I dealt with contracts all the time.

And I would have some of the most ridiculous fights over the smallest clauses because I absolutely would not work without those clauses. One clause in particular dealt with voiding the NDA in case of a criminal investigation. It's assumed by many that this is allowed by default, but I prefer explicit wording rather than implicit wording. I also demanded an exit clause to the No-Compete agreement in case of non-payment and a few other possible situations.

People who rely on implicit clauses end with up a great deal of grief. If you take the position that if it's written it's in, but if it's not, then it's out, you'll be a lot happier.

Unless you're a damn Republican like I was.

(6) Norman Rogers made the following comment | May 24, 2005 9:09:12 PM | Permalink

Beldar,

There will be no more filibustering of Presidential nominees -- Full Stop. The game is over. Yeah, the seven "moderate" Democrats reserve this right and that right, etc.

But the game is over.

Sure, you'll hear loud rhetoric but the notion that the Democrats can stop the Senate because they deem a judge is "too extreme" is done with.

That's what this was all about.

Now, if anyone can show me that this is anything less than a shnide for the Democrats ...

(7) James made the following comment | May 24, 2005 9:10:20 PM | Permalink

Don't forget one key detail-- the 7 dwarves DON'T WANT to exercise the "nuclear" option.
They didn't want to this time, and they won't want to next time. Even if Beldar is willing to split legal hairs to give them an excuse to pull the trigger, all they really want is an excuse to give up their guns. And such an excuse, I'm afraid, they'll always find.

(8) Spoons made the following comment | May 24, 2005 9:20:52 PM | Permalink

I wish you'd explain your reasoning a bit more, Beldar. I'm a lawyer too, and I could not, with a straight face, make the argument that you're advancing. The agreement states that the definition of what constitutes an extreme circumstance sufficient to warrant a filibuster is at the sole discretion of the filibuster-er.

Here's the rub: The Democrats CANNOT breach the agreement. Once they let these three through, they have no remaining obligations whatsoever other than those that they define for themselves.

(9) Spoons made the following comment | May 24, 2005 9:27:10 PM | Permalink

Oh, and Norman.... I'm trying to argue rather than simply name-call, but you are frankly quite insane.

"There will be no more filibustering of Presidential nominees -- Full Stop. The game is over."

Whence do you get that idea? Most of the Democrats have already said there will be. Do you honestly believe that the President could appoint a judicial conservative to the Supreme Court and not have him filibustered?

(10) Geek, Esq. made the following comment | May 24, 2005 10:11:47 PM | Permalink

Undefined terms like "extraordinary circumstances" are either the result of poor draftsmanship or a desire to punt.

No mystery which applies here. The deal was pretty simple--three nominees get votes, two get thrown under the bus, and the rest tbd.

(11) Robert made the following comment | May 24, 2005 10:36:08 PM | Permalink

I enjoy your blog a lot. Thanks.
I'm not a lawyer. My first read of the agreement was like Ed Whelan's. I continue to see it that way. If I signed a document that said each signatory must use his or her own discretion and judgment in determining whether such circumstances exist, I would think that I get to decide whether, for a particular filibuster, extraordinary circumstances exist. If I conclude that they do not, then the agreement is breached.

I like to think that I am an ethical person who does what I say (or tries to). I understand the “contractual” test that does not like open clauses like that one. But if I were a signer who concluded that the Dem’s were not acting in good faith and (facetious I know) got sued. I would happily take my chances with the jury.

(12) James B. Shearer made the following comment | May 24, 2005 10:56:46 PM | Permalink

Beldar, as James points out above the Republican signers don't really want to vote for the nuclear option so they are unlikely to be looking for a way to do so. The real problem from your point of view is moderate Republicans don't care all that much about getting all of Bush's judges confirmed. This does not make them stupid or suckers.

Btw what do people predict the confirmation vote on Owen will be? Anything like the cloture vote will make the Democrats look pretty silly in my opinion.

(13) RAZ made the following comment | May 24, 2005 11:01:03 PM | Permalink

There would seem to me to be one instance where the Democrats signing the MOA would not be in the position to make a good faith assertion of "extraordinary circumstance." If Bush were to nominate for a Supreme Court vacancy one of the three judges given a pass under the MOA, the signing Democrats would seem to be precluded from asserting such "extraordinary circumstances" as would permit them to support a filibuster since they have already given these three candidates a passing grade!

(14) Thom made the following comment | May 24, 2005 11:18:18 PM | Permalink

If the democrats really have no obligations other than what they themselves determine are their obligationss, is there any agreement at all, or can the whole thing be disregarded under the doctrine of "illusory promises?"

(15) ed made the following comment | May 24, 2005 11:53:19 PM | Permalink

Hmmmm.

1. "I wish you'd explain your reasoning a bit more, Beldar. I'm a lawyer too, and I could not, with a straight face, make the argument that you're advancing."

Actually I believe Beldar is trying to play Devil's Advocate here because so many people are trying to put forth the argument that the Republicans have won.

2. "Whence do you get that idea? Most of the Democrats have already said there will be."

Actually one of the Republican 7, senator Warner, has already stated that it would take a "series" of filibusters for them to reconsider anything.

3. "I would happily take my chances with the jury."

*shrug* hey it's your dime.

But you're forgetting that lawsuits happen, are determined and then are basically over. You pay money, you get money, and everyone goes home. In politics any transgression, however imaginary, will be used like a club to beat you with for the rest of your life. It'll never end.

On top of that there are the rules and traditions of the senate. Legally this MoA might not be enforceable in a court of law. It's existence however is outside the law and exists within the strictures of the senate.

So hey maybe it won't be enforceable. But then comes the next question which is: Why then did the Democrats want it in writing? And with signatures?

4. "If Bush were to nominate for a Supreme Court vacancy one of the three judges given a pass under the MOA"

About twenty people have come up with that and the short answer is: fat chance.

The three allowed judges are being passed for a specific job, appeals court. Another nomination is a completely different deal and won't be covered by this agreement.

Which of course is clearly outlined in the text of the agreement:

"A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit)."

(16) Dafydd made the following comment | May 25, 2005 3:34:54 AM | Permalink

Schticks & Shtones

If the Republicans are assuming that there is one, then they will have to face the commentators on national television who will attack them for their lack of character, lack of credibility and their forsworn word.

Wait, Ed -- explain to me how this is different from today.

Beldar, as James points out above the Republican signers don't really want to vote for the nuclear option so they are unlikely to be looking for a way to do so.

But they also don't want to look like they're condoning organized filibusters of every conservative nominee, because they have to run for re-election, and the base matters. And the base is pissed off, James B. Shearer.

The force of lethargy and inertia is on the side of letting it all slide; the force of fund-raising and Republican primaries is on the other.

If the democrats really have no obligations other than what they themselves determine are their obligationss, is there any agreement at all, or can the whole thing be disregarded under the doctrine of "illusory promises?"

This is yet another example of "right pew, wrong church." Thom, this is not a legal contract! It does not need to be adhered to, defended in court, or supported by legalistic arguments in the "court of public opinion."

This is politics; anybody can change his vote at any time, based upon personal calculations of political risk and reward. The only consequences are political... and believe me, running against, say, Lindsay Graham in South Carolina on the campaign slogan "Graham promised to betray the GOP, and he reneged, damn it! So vote for me!" is about as futile as anything I could imagine.

In politics any transgression, however imaginary, will be used like a club to beat you with for the rest of your life. It'll never end.

Ed, it's almost as if you imagine that if the Republicans kept their word and allowed the Democrats to filibuster every nominee Bush makes over the next four years, that the Democrats won't find something else to beat them with for the rest of their lives.

Whenever a Democrat says "if you don't do what I demand, I'll attack you on talk shows and run ads comparing you to Hitler," we should all burst into stentorian laughter... because, of course, he has just described what he already does every day and twice on Sundays! What difference does it make?

Attacking a Republican for backing out of a deal to betray the GOP is not going to switch a single vote, Republican or Democrat.

Dafydd

(17) Norman Rogers made the following comment | May 25, 2005 7:05:24 AM | Permalink

Thanks, Spoons. I appreciate the great restraint you've shown by only labeling me insane and not calling me any nasty names. I know that it was very hard for you.

And, I'm delighted to extend my remarks and explain my prediction: There will be no more filibustering of Presidential nominees -- Full Stop.

1. The only reason the Democrats cut a deal is that they knew full well theirs was a losing hand. Frist had the votes and all were headed to an accounting. This deal provides some face-saving and averts an ignominious defeat.

2. The actual debates were far more painful to the Democrats than to the Republicans. Not only did the Republicans have the votes -- they had by far the better arguments. The Republicans kept throwing the Democrat Senators own words back at them, rubbing their noses in their hypocricy. Not fun. They will not willingly go through this again, especially now that they'll have affirmed the judges they demagogued against the most. Four or five days of non-stop debate by the Senators themselves is enervating and incredibly costly. Crisis averted, they won't do it again.

3. But, Frist has no choice but to bring up all nominees to floor. His political future depends upon his following through (and Bush is relentless). And if the Democrats force a cloture motion (by more endless debate) on any remaining nominee they force their seven "moderates" to make a hard choice: honor or party. If these seven did hang with their party the seven "moderate" Republicans would face a similar choice: dishonor or party. And it would only take two of them to make a finding of fact (that the Democrats were "unreasonably" filibustering) for the Nuclear option to pass (50 + Cheney = win). And all of this would play out again on the national stage and the Democrats certainly don't want that.

So how will this play out, you ask? Quietly, I say. All seven of the nominees that have been voted out of committee will get a vote by the full Senate. Mind you -- they won't all necessarily be confirmed. There may well be a little log-rolling behind the scenes. But they'll all get their votes.

Who wins? Well Frist, clearly. He'll deliver the up/down votes. And all fourteen of the "moderates" win as well.

Who loses? Reid & Co. They get nothing out of the deal -- except some cover. They didn't actually have to commit suicide on national tv.

Now, you can ask if this calculus was what was driving this deal or whether this is an unintended effect. Likewise, you can ask if Frist yet knows he's won and Reid that he's lost. But in the end it makes no difference: the facts on the ground are the facts on the ground.

(18) Blanknoone made the following comment | May 25, 2005 8:35:05 AM | Permalink

Norman,
I appreciate your explanation. But I still think you are wrong. I think what you say is what COULD have happened (if the spineless 7 had a partial spine) perhaps even what SHOULD have happened, but it isn't what DID happen. Implicit in this agreement is the continued filibuster of 2 nominess, and the word on the street is the unwritten side deal to sink two more, although not necessarily through a filibuster. In other words, they don't get the votes, and they don't get them because of the spineless 7 committed to work with the obstructionist D's rather than their own party.

If they do follow through their MOU and not the party, I would very much like to see the party act. What the maverick moderates need to be taught is that there is a real cost to crossing the party. And it should be their comittee appointments.

(19) Norman Rogers made the following comment | May 25, 2005 8:51:47 AM | Permalink

Blanknoone, we'll see.

My predictions are that all seven of the current nominees reported out of committee will get up or down votes in short order and that at least five will be confirmed. And Bolton will be confirmed. And there will be no more filibusters of Presidential nominees.

I've explained my reasoning above. If I'm right this is a very good deal for the Republicans and a complete washout for the Democrats. I cannot see this unfolding in any other way.

(20) ed made the following comment | May 25, 2005 10:12:25 AM | Permalink

Hmmm.

Perhaps I'm relying on the good graces of senator McCain. I frankly can't recall any single initiative of McCain's that didn't turn out badly. So I might be wrong on this.

If I'm wrong then I'll revisit every blog where I posted my opinions and eat crow.

If I'm right, then I expect the people who held opposing views to do the same.

If nothing else, it'll be interesting to see how it all turns out.

(21) Joe made the following comment | May 25, 2005 1:32:11 PM | Permalink

I'm with the Coalition of the Chillin.

http://decision08.blogspot.com/2005_05_22_decision08_archive.html#11170347

(22) The Drill SGT made the following comment | May 25, 2005 2:21:41 PM | Permalink

BELDAR,

Can you comment on this?

http://news.yahoo.com/s/nm/20050525/ts_nm/congress_judges_dc_24

Owen, 50, recently received the worst rating on the Texas Supreme Court in an annual judicial evaluation poll by Houston lawyers. With 350 votes cast, 39.5 percent said she was outstanding, 15.2 percent rated her acceptable and 45.3 percent said she was "poor." None of the court's eight other judges had as many "poor" votes and only one had fewer "outstanding" votes.

(23) Mark L made the following comment | May 25, 2005 5:43:25 PM | Permalink

Beldar:

You are overlooking two reasons (three actually) why the Republican 7 of 14 can ignore their pledge not to vote for the Byrd option.

The agreement is just that -- an agreement. It is not a legally binding contract. (this is not one of my two reasons why it can be overlooked, but it forms a "zeroth" underlying reason.

First, if the Democratic 7 of 14 choose to fail to vote cloture on a Judicial filibuster, citing "extraordinary circumstances" when they patently do not exist, why, they will have doublecrossed the R 7 of 14. There is nothing a doublecrossed Senator seek more than revenge.

Second, for all seven of the R 7 0f 14 to abide by their agreement, despite their desire to get revenge -- in absence of a legal compunction -- requires them to be honorable men. (Or at least six of them to behave in a purely principled manner while all five Democrats behave like scoundrels.) But, instead they are Senators.

The Republicans won. That is as sure as Senators behaving like Senators.

(24) vnjagvet made the following comment | May 25, 2005 5:55:41 PM | Permalink

Ed:

If you're in the Atlanta area, I'll buy you a beer if your right, if you will reciprocate if I'm right.

You name the place.

(25) ttyler5 made the following comment | May 25, 2005 9:05:36 PM | Permalink

McCain made the assertion as well ( "extraordinary" does not include "conservative" and the nuke opt is on the table again if that happens) in a mobile interview with Sean Hannity on Hannity and Colmes.

Hannity went straight for the statement and got it.

Anyway, we'll see what these guys really do, when push comes to shove! You know, they talk a lot but let's see the money!!!

Beldar, BTW, have you ever been surrounded by the ATF and accused of being an illegal alien narcoterrorist gunrunner on your lunch hour? Two Houston rightbloggers had a wild day today, check this out, you won't believe it! ---

Lair Simon

http://isfullofcrap.com/oldcrap/2005/05/you_learn_somet.html#003142

deskmerc:

http://deskmerc.com/?p=327

(26) ttyler5 made the following comment | May 25, 2005 9:10:11 PM | Permalink

PS, if you missed it, the Hannity and Colmes with the McCain interview reprises again on Fox News at 1AM Houston time

(27) ed made the following comment | May 26, 2005 3:45:09 PM | Permalink

Hmmmm.

"Owen, 50, recently received the worst rating on the Texas Supreme Court in an annual judicial evaluation poll by Houston lawyers. With 350 votes cast, 39.5 percent said she was outstanding, 15.2 percent rated her acceptable and 45.3 percent said she was "poor." None of the court's eight other judges had as many "poor" votes and only one had fewer "outstanding" votes."

PowerLineBlog already debunked it. Basically it's a bunch of Democrat lawyers trying to manipulate a poll for political purposes.

Frankly I don't know why anyone puts any stock in those things. I have yet to see a poll that actually reflected what people ended up doing.

(28) ed made the following comment | May 26, 2005 6:31:36 PM | Permalink

Hmmm.

Since the Democrats are now saying that blocking cloture isn't a filibuster I think we need to come up with a new term for it. Since some wags have come up with "Coalition of the Chilin", for those that approve this absurd agreement, I vote we call this new maneuver "Chilibuster".

Remember! It's NOT a filibuster! It might look like one. It might seem like one. It might act like one.

But it's a Chilibuster. All that senatorial comity has SAVED the senate. Gosh. I feel like voting for McCain.

(29) ttyler5 made the following comment | May 26, 2005 7:33:59 PM | Permalink

That Houston bar poll is also interesting in light of the fact that Justice Owen received 84% of the popular vote in Texas when she was elected to the Texas Supreme Court.

Do ya' think maybe there is a big difference between Texas voters and Texas democrat lawyers -- at least, what's left of the democrats here anyway.

(30) The Drill SGT made the following comment | May 27, 2005 10:28:49 AM | Permalink

To Ed,

The reason I asked the question about the Houston Bar Poll is that it's my understanding that Veldar is a member of the Houston Bar and might comment on the poll or demographics thereof.

(31) ed made the following comment | May 27, 2005 11:42:12 AM | Permalink

Hmmm.

"The reason I asked the question about the Houston Bar Poll is that it's my understanding that Veldar is a member of the Houston Bar and might comment on the poll or demographics thereof."

Sure, good question. I figured I'd jump in and provide the link in case anyone was interested.

And I still don't see why anyone trusts polls. The whole "weighting" nonsense makes it little more than pure fabrication. I should start a professional polling company and call it "Polled out of my A$$!".

:)

(32) ttyler5 made the following comment | May 29, 2005 9:10:56 AM | Permalink

Is it polled out of my a$$ or only A$$e$ answered the poll?

(33) ttyler5 made the following comment | May 29, 2005 9:25:37 AM | Permalink

And My Gawd, Beldar, are you really a member of the Houston Bar, and if so, how did you EVER discover the meaning of the term " moral principle"? Certainly, your professors as well as your peers attempted to dissuade you of this arcane concept?

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