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Tuesday, May 24, 2005

Live-blogging the Senate floor debate (ostensibly on Owen)

At 9:00 a.m. (Central): Harry Reid just accidentally told the truth on the floor of the U.S. Senate. After saying that he supports the Memorandum of Agreement (the document supposedly calling the Dems on the carpet for routinely filibustering judicial nominees), he said, "Every filibuster is extraordinary." Yes, read that direct quote to yourself again, then look at the document. The Democratic Leader believes that the Democratic signers of the MOA have grounds to filibuster every previously filibustered nominee (except, presumably, Pryor, Owen, and Brown).

He also said, "The nuclear option is dead for our lifetimes." Thankfully, that cannot be true. First, the document only contains a commitment of no rules changes for the 109th Congress, which will end in January 2007 when the 110th Congress is sworn in. Second, at least some of the signers of the MOA won't be back in January 2007 anyway, by their own choice; and the voters may well have reactions that will change the scorecard lineup as well.

At 9:30am: Bless his boozy, craven, liberal, lawyer-like heart, there's a reason that the senior senator from MA (in contrast to its junior senator) still keeps his law license intact. He just performed the first preemptory cross-examination of any Republican signer of the MOU who might waiver and claim he/she's off the hook if the Dem signers are vaguely naughty. He didn't quite use the word "iron-clad," but that's the concept and that's the language, and yes, Teddy absolutely gets both. The message to Graham and DeWine is clear: "Change your mind about voting for the nuclear option, or even claim that you have the right to, and we'll shove this signature of yours up your wazoo sideways on national TV every day for a month running." (He also understands that the commitment only runs through January 2007, avoiding Reid's overstatement.)

Meantime in the blogosphere, Edward Whelan writes:

Any agreement must be read against background contract principles. One of the most elementary principles of contract law is that a material breach by one part excuses continued performance by the other. So there is, I submit, no question that a Republican signatory is not bound to his promise to oppose cloture reform if the Democrat signatories do not live up to their end of the bargain.

That's absolutely right, and that's where Mr. Whelan stops his analysis. Some staff advisor to the Republican signers could and should have insisted that this proposition be expressly written into the MOA. The Dems couldn't have opposed such a demand with a straight face — "No, we insist that we can breach and you're still bound!" isn't something you can say. But I agree with Mr. Whelan that the common law, and public common sense out of which this common law developed, both give the Republican signers this "right" whether the agreement says so explicitly or not.

But that's not where the analysis or the action will stop when the Dem signers refuse to support cloture. My whole point (which others, e.g., Bradford Berenson and Andy McCarthy are also arguing, more succinctly than I have) is that would-be wafflers on the Republican signers' commitment have to say why the "Democratic signatories [have] not live[d] up to their end of the bargain." Because of the subjective "good faith" standard built into the agreement, no such argument could ever be proved, or even persuasively argued, even in the loosey-goosey court of public opinion.

At 9:45am: Back on the Senate floor, Lindsey Graham is still insisting that he reserves the right to vote for a rule change in the 109th Congress if he thinks the Dems are misbehaving. Well, great, Lindsey — except that's not what the document that you signed says. The document takes that discretion to grade the Dems' sincerity away from you, and expressly gives it to the Dem signers themselves. Plain English, short words, fits on one page. Teddy's gonna eat your lunch on this, Lindsey, and that's awfully pathetic.

At 10:00am: Cornyn invokes Rosanne Rosannadanna's line from the old SNL Weekend Update skits: "Never mind!" (Actually, he meant Emily Litella, another Gilda Radner character whom I've had frequent occasion to quote, proving again that the blogospheric debate rivals that of the World's Greatest Deliberative Body, except with hyperlinks.) I think at first he's going to use that line on behalf of Graham and DeWine, to invite them to begin eating crow for signing something so catastrophically drafted, so they can start "walking things back." (Cornyn's own mouth still has crow feathers hanging from its corners.) [Now it's Beldar's turn to use an old SNL line, this one from Steve Martin:] But nooooooooo! Cornyn means that the Dems are saying "Never mind" now about Owen.

At 10:15am: Leahy is annoyed that Frist is insisting on getting a record vote on cloture, just as Reid was at the beginning of the morning. Not content to reinterpret the AG's insistance that he hasn't trashed Owen, Leahy now insists on reinterpreting John Cornyn's insistance that he hasn't trashed Owen, not ten minutes after Cornyn left the microphone. But Leahy's mostly sticking to his pre-MOA script, which I think is canny on his part.

At 10:40am: Back to Reid: "The nuclear option is off the table, and we should stop talking about it after today." No suggestion that the Dems have to do anything specific to keep the nuclear option "off the table" on the MOA. But then back to his pre-MOA script as well.

I'm thinking Frist is making a mistake by getting a record vote on cloture. It will only create a clean precedent showing that the seven Dems who signed the MOA are "living up to their commitment," setting up their future arguments of "treachery!" and "deal-breaking!" when/if any Republicans try to walk back on their commitment not to support a rules change.

Now Reid says it explicitly, after directly quoting the "his or her own discretion and judgment in determining whether extraordinary circumstances exist" language:  "This [MOA] of course is a subjective test, as it always has been." Is Reid reading BeldarBlog? Naw, Beldar just read the Dems' plan (now becoming more clear, from Reid's and Kennedy's arguments) from the language the Dems suckered the seven Republicans into signing.

Oh my gosh, now he's quoting Caro's Master of the Senate ... maybe he is reading BeldarBlog!

At 10:45am: Specter (hoarse and looking very sick) seizes upon Reid's statement that the filibuster will be "occasional" and "very infrequent." (Yeah, right.) The term "extraordinary circumstances," says Specter, "does not lend itself to easy interpretation," so the "occasional" and "very infrequent" words are comforting to him. (Well, except the MOA expressly says who gets to do the interpreting.) But sheesh, Specter now says the MOA maintains the delicate "constitutional check and balance, the very important constitutional separation of power." The nuclear option, sez Specter, would have "materially affected the delicate separation of powers," giving any President greater power; or if defeated, the Dems would have been "emboldened to go further in the use of the filibuster." (Half right; the attempt to change the traditional checks and balances came from the Dems when they started judicial filibustering as a regular party-led matter in 2001.)

At 11:00am: And now the surreal: After a conventional and rambling defense of Owen, Specter concludes with a bizarre anecdote about former Sen. D'Amato singing on the Senate floor while wearing a pig suit, Specter turns the floor back over to Frist. Frist says it's time (noon Eastern) to vote on cloture, and he's right.

At 11:25am: It's sounding to me like virtually the entire Democratic Party contingent in the Senate has jumped aboard the MOU bandwagon. "Obstructing? Moi?" Only a very few "no" votes (e.g,.Corzine & Boxer).  "Ayes" from <em>lots</em> of hard-left take-no-prisoners Dems if I'm hearing this right, although it sounds like some are switching back to "no" now near the end.

At 11:30am: 81 to 18, announces the presiding officer ... cloture is approved, and the Senate is in recess (as am I).

Posted by Beldar at 10:23 AM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink

TrackBacks

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Comments

(1) ed made the following comment | May 24, 2005 10:53:27 AM | Permalink

Hmmm.

Jesus! What is it with people reading things into the this agreement that AREN'T THERE!! I'm in a big discussion over on Roger L. Simon's blog and people are just coming up with stuff that isn't at all in the MOA.

WTH?

It is just wishful thinking? Is it some sort of cognitive dissonance where people being politically rogered don't want to admit it?

(2) Geek, Esq. made the following comment | May 24, 2005 10:59:55 AM | Permalink

Working link.

(3) Roofer made the following comment | May 24, 2005 12:18:22 PM | Permalink

In a world where topless dancing is protected speech under the First Amewndment but political advocacy isn't, why should anyone be surprised when a bunch of lawyers find things in a document that aren't written?

Maybe we should hope that the GOP finds a "penumbra" of rights that "emanate" from the MOA.

(4) Birkel made the following comment | May 24, 2005 1:22:00 PM | Permalink

Beldar,

Did you mean MA (Massachusetts) instead of MS (Mississippi)?

Glad to see you back in action, even if only briefly.

Regards.

(5) The Principled Traditionalist made the following comment | May 24, 2005 2:02:09 PM | Permalink

When will we realize that RINOs and obstructionist media darlings are always going to screw us? Gutless does not even begin to describe these people.

(6) Dafydd made the following comment | May 24, 2005 3:56:11 PM | Permalink

No, Beldar, it is you who "doesn't get it."

Your problem is that you're a lawyer, so you simply think like a lawyer. This is not a legal contract; this is not enforceable in court; there are no "standards" that have to be met, "reasonable man" or otherwise; nor does any of the Seven Dwarfs need to make a "compelling argument" about anything.

IF any senator -- say Lindsay Graham, for example -- decides in his own personal mind that the Democrats are not restricting filibusters to the "extraordinary circumstances" they agreed to, there is only one group of people he must convince: the voters in Stromland. Since they probably don't like the deal in the first place (as Graham amazingly admitted), it wouldn't take much to convince them.

And frankly, the idea that Teddy Kennedy is going to go down to South Carolina, put his arm around Graham's Democratic opponent in 2008, and "shove [that] signature of [his] up [his] wazoo sideways" is, frankly, laughable: odds are that whatever Democrat runs against Graham in 2008 will beg Tedro to say above the Mason-Dixon and probably to stay north of Connecticut.

All it would take to persuade Graham, Warner, and DeWine to pull out of the agreement would be to convince them that their personal political fortunes would be served by doing so. It's that simple. All the Democratic handwaving about betrayal would be matched by Republican handwaving about betrayal, and no voter would give a damn.

Does this mean any two of those three are going to pull out? No... not unless convinced as above. But the point is that it's purely a political question, not a legal question, and the only justification they need to make would be to their own constituents -- who would likely, at least for Warner and Graham and possibly DeWine as well, be more disposed to support them pulling out than staying in anyway.

Dafydd

(7) Drugstore Cowgirl made the following comment | May 24, 2005 5:21:57 PM | Permalink

The Donks certainly knew which dim bulbs to go to didn't they? This is simply a disgrace. I'm so disgusted and angry and disappointed.

(8) Beldar made the following comment | May 24, 2005 6:26:42 PM | Permalink

Birkel, you're right of course, and I've corrected the typo. Live-blogging is dangerous!

Dafydd, you're right that I can't help thinking like a lawyer. You're right that — as I've said again and again — there will be no legal determination as to the meaning of the language in the MOU. You're absolutely right that "All it would take to persuade Graham, Warner, and DeWine to pull out of the agreement would be to convince them that their personal political fortunes would be served by doing so."

Where we disagree is your prediction that a Republican signer could bail out of the MOU and remain politically bullet-proof for that decision.

I agree that Teddy's unlikely to show up at political rallies in the signers' home states. He doesn't have to, though. His cross-examination, as begun today, will be repeated over and over again by the MSM reporters who will dog the signers in D.C. and at home. And even people who politically or personally despise the Senior Senator from MA (as I do) can read simple English sentences.

There will be some political fall-out if any of the signing Republicans disavow the MOU. Will they perceive it as a large enough danger that fear of that fallout will be decisive in their calculations of personal political benefit? You confidently predict that the answer is "no," and I simply disagree. But we're both talking about a political prediction, not a legal one.

(9) Dafydd made the following comment | May 24, 2005 8:01:05 PM | Permalink

There will be some political fall-out if any of the signing Republicans disavow the MOU. Will they perceive it as a large enough danger that fear of that fallout will be decisive in their calculations of personal political benefit? You confidently predict that the answer is "no," and I simply disagree. But we're both talking about a political prediction, not a legal one.

No, I made no such prediction; I only stated what you agree with above: that it is a political, not a legal or moral decision.

Any particular Dwarf will flip when the following political equation has a negative value:

(political damage from flipping) - (political damage from sticking with the MOU) = TotalNetFlipDamage

FlipDamage - MOUDamage = TNFD

Once TNFD < 0 (or rather, once the senator believes TNFD < 0), he will flip, back out of the agreement, and vote for the Byrd option.

I can only predict that the Democrats will likely take this MOU as a license to continue filibustering every conservative nominee... well, maybe after letting a few nominees go by, just to prove they're not fanatics about it! If they do, if they casually filibuster the next Priscilla Owen or Janice Rogers Brown, then the MOUDamage term above will skyrocket.

At some point, I suspect it will fly past the FlipDamage term, and the agreement will collapse. But that depends on what the Democrats do.

Dafydd

(10) John Galt made the following comment | May 24, 2005 10:03:47 PM | Permalink

You said, "I'm thinking Frist is making a mistake by getting a record vote on cloture. It will only create a clean precedent showing that the seven Dems who signed the MOA are "living up to their commitment,"

But only six of the seven Dems who signed the MOA actually voted for cloture. One of them has already dishonored their agreement.

What should be the fallout from this?

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