It may surprise you

It may surprise you to hear that I’m not totally averse to a compromise in the judges/nuclear option situation. Not all of the judges being filibustered, for instance, are equally extreme in their views. So it wouldn’t seem a bad deal to me if the senate Democrats were to allow up or down votes on some or even most of the judges in question, if what they got in return was some ironclad guarantee that the Republicans would no longer try to break the rules and abolish the right to filibuster.

Now, how that guarantee could truly be ironclad? I have no idea. But I’m speaking in hypotheticals.

What I don’t understand is the logic of the deal that some of the senate moderates seem to have been and perhaps still are considering. The proposal floated yesterday would allow the two most extreme nominees, Owen and Brown, to go through, in addition to three others. On top of that the senate Dems, if I understand this right, would agree, in essence, seldom if ever to join filibusters in exchange for a promise from their counterparts on the other side not to vote to outlaw filibusters.

Now, there are those I’ve spoken to who see such a deal as worth it because at least it leaves the filibuster intact for the upcoming Supreme Court nominations. But this strikes me as foolish. There are easily enough Republicans to defeat this right now, if this were a secret vote. What we’re seeing, however, is the degree of pressure the president, the religious right and Sen. Frist — who is in hock to the religious right because he wants to be president — are putting them under.

If the filibuster is ‘saved’ today at the cost of letting the most constitutionally noxious nominees go through, do we really imagine that the pressure will be any less when we get into a Supreme Court battle? The question answers itself. If they can’t withstand the pressure now, they certainly won’t be able to withstand it then. So such a deal, as near as I can figure it, would ‘save’ the filibuster in an entirely meaningless way, a right the minority would continue to hold so long as they agree never to use it.

The situation would be different if the deal did not allow through at least the two most extreme nominees, Owen and Brown. On one level it would be different simply because those two judges’ records make them the most important to defeat. On another level, though, it would represent a telling sign. If these Republican moderates were to agree to a deal that nixed these two nominations, that would tell me that they really are willing to hand their leadership (and the Dobsonites) a significant defeat and that they recognize that the power of the filibuster remains intact — otherwise, why nix the two nominees both sides see as most important.

Those two facts would be the tangible proof that the filibuster still exists and that a significant number of Republicans recognize its existence and are willing to sustain it. That would mean far more than any words on paper or handshakes.

(Such an arrangement would also spawn a civil war among Republicans.)

So all of that is my thinking on why it might be good on substance and on politics — depending of course on the precise particulars of the deal — to give the Republican moderates a few judges now in exchange for putting to rest this plan to break the senate rules with false claims of the filibuster’s unconstituionality. But any agreement that concedes on the present nominees in exchange for kicking the can down the road till the next fight on which the stakes will be even higher is just stupid.

If the filibuster is dead, far better as a matter of principle, honesty and politics to find out now, in advance of the next fight, than pretend otherwise.

The truth is that I think this whole debate is really hypothetical or moot. They’ve decided to break the rules with their false claim of unconstitutionality. And if that’s true then Democrats should confront the situation at that level, without fear of doing so, without fear of ‘losing’ in the narrow sense of the term. It’s just about the rump caucus of Republican moderates and whether they want to join their colleagues in their rule-breaking.

Late Update: This is one of those cases where I wish TPMCafe were already up and running (in case you’re wondering, the site will launch before the end of the month) because the comments I’m getting in on this post are fascinating and have already led me to, at least partly, reconsider my position.

Many readers argue that the sort of ‘compromise’ I suggest still wouldn’t be worth it because it would further confirm the Democrats’ reputation — both to themselves and to the electorate — as weak, as trimmers who won’t take a stand on a point of principle. In this sense, conceding anything would grant a measure of legitimacy to what is plainly an illegitimate action, one demonstrably based on false claims. I think that’s a solid point. Over the last four years the Republican party has resorted with increasing frequency to tactics that at a minimum break long settled norms of our politics and in more than a few cases violate the law itself.

My openness to such a compromise is based on the belief that the sort of compromise I sketched out could well be the final straw that blows a big part of the Republican coalition apart. If the Republicans, either as a whole or because of a few defectors, let the filibuster stand, the Dobsonites will simply go nuts, though I admit in one sense of the word that may seem redundant. So I don’t think Frist can or will compromise in this case because it’s not as though there’s any principles here save his own advancement that he cares about. And he doesn’t think he advances any further without James Dobson pulling his strings.

And, as long as we’re on the topic, have you ever seen Dobson and Frist talk simultaneously?