More extraordinary circumstances

Yesterday, I speculated about what the Senatorial compromise on judicial nominations might mean, concentrating on the phrase extraordinary circumstances.  I raised the spectre of its definition being subject to debate on the floor and/or in committee, though I was also hopeful that in nearly all scenarios applying a definition would be all but equivalent to retaining the filibuster.

Turns out, of course, that the Gang of 14’s document neatly sidesteps the entire question of defining extraordinary circumstances.  Part II, section A of their memorandum states, in its entirety:

Future Nominations.  Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith.  Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

In other words, it’s up to each senator to decide what is worth filibustering.  In still other words, whatever 41 senators believe to be extraordinary circumstances will still constitute a successful filibuster.  In short, the filibuster persists, unaltered in the 109th Congress, except for the nominations specified in the memo—Priscilla Owen (cloture already invoked as I write), Janice Rogers Brown, and William Pryor.

Rumors abound that an unspoken part of the deal is that at least one of the judges involved in this battle will fail to receive a majority on the Senate floor.  If that includes one of the exempted nominees, I hope it’s Brown, whose jurisprudential philosophy is said to make Scalia and Thomas look mainstream.

In any case, I believe that this compromise can be a net positive, if we all work hard to turn the tide in Congress—specifically the Senate—in the 2006 election. A word to the wise that it’s never too early to start working and organizing…

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