Let’s be honest. It was hard to stomach the Senate’s confirmation of Priscilla Owen to the federal appeals court on Wednesday. She doesn’t belong there and she's probably not the last bad Bush judge to get on the courts. But the deal that gave her the vote is still a resounding defeat for the radical right.
If you have any doubts that the compromise that denied Senator Frist the ability to detonate his nuclear option was a defeat for the radical right, just listen to the weeping and gnashing of far-right teeth. Self-annointed power broker James Dobson: "This Senate agreement represents a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats." Rick Scarborough, leader of the Judeo-Christian Council for Constitutional Restoration: "I have rarely been more sickened than I am at this moment...this devil's bargain must not be allowed to stand and I give you my word we are expressing our outrage..." You can find a daily compilation at People For the American Way’s website.
Anything that makes the radical right this unhappy deserves a close look. And anyone who is complaining about the deal or "the Democrats" should keep a few things in mind.
1) Republican leaders, with 55 Senate votes and the White House, had their most urgent desire –- an end to the filibuster before a Supreme Court fight –- denied them. Their base is furious and engaging in rabid intraparty infighting.
2) Even if Frist & Co. try to bring back the nuclear option during a Supreme Court fight, they will be on much weaker ground. They've had a bipartisan group openly talk about how destructive the nuke option would be. And they'd be trying to eliminate checks and balances that are protecting the American justice system’s holy of holies. The public, which was strongly opposed to getting rid of the filibuster this month, will be even more overwhelmingly against it in the context of the Supreme Court. It will make right-wing pieties about "majority rule" ring hollow.
3) Many of the right’s vaunted "principles" – like the ridiculous claim that the Constitution requires an up-or-down vote on every nominee – have been publicly repudiated.
4) Senators from both parties have publicly demanded that Bush take the constitution's clear "advice and consent" role for the Senate seriously. They have called on him to try to find consensus nominees for the Supreme Court rather than provoke another divisive partisan battle. That puts the pressure on the White House not to go for broke with another Robert Bork. Look at it another way. If Frist got and won his nuclear option vote, the political momentum and the demands of the triumphant far right would all have pushed Bush to go for the most extreme nominee possible. The political environment has been changed for the better.
On top of these points, keep in mind that "the Democrats" didn't cut this deal. Neither did Senate Minority Leader Harry Reid, who has led a passionate campaign to keep the worst Bush judges off the bench. And neither did the progressive organizations that have moved heaven and earth to save the Constitution from the power plays of Bush-Cheney-Rove. It was a compromise struck by seven Republicans and seven Democrats. And while it has a high cost in terms of giving some really scary judges the keys to the appeals courts, it may have prevented far worse damage – catastrophic, long-term damage – on the Supreme Court.
No one knows who would have won the vote on the nuclear option. And no one knows for sure just how long this compromise will hold or how it will affect future nominees. But it has undoubtedly weakened the hand of the far-right at a crucial moment in our history.