Despite the fact that Republicans increased their majority in the Senate to a health 55-45 in the 2004 elections, we learned last week that it does not take much for Republicans to lose political battles in the Senate. Democrats over the last four years have engaged in an unprecedented use of the filibuster to stop an up-or-a-down vote on the President's judicial nominees, who would otherwise win confirmation in the Senate. This last week, we almost reached the point where Republicans would execute the "nuclear" or "constitutional" option, depending on the spin on which one wants to apply, to change the rules to prevent filibusters of judicial nominees.
The systematic practice of the judicial filibuster has caused escalating acrimony in the Senate. Republicans have worked hard to win the Presidency and a clear majority in the Senate in the hopes of selecting future judges less disposed to create law and more inclined to adhere to an "original understanding" of the Constitution. Hence, they are frustrated by the use of the filibuster by Democratic Senators to exercise political control that they could not win at the ballot box.
However, if Republican used their voting power to restore precedent and traditional with respect to judicial nominees, Democrats promised to slow the progress of legislation. Moderates, on both sides of the aisle, in a stated effort to restore comity, bipartisanship, and fraternity conjured up a last-minute deal. The President gets an up-or-a-down vote on three of his judicial nominees that had been filibustered. Democrats promise not to use the filibuster for judicial nominees except under ``extraordinary'' circumstances. Republicans agree to not vote to Senate changes the rules in the meantime.
The supposed comity and fellowship the deal engendered lasted about 48 hours. Democrats raced to filibuster the nomination of John Bolton to be US Ambassador to the United Nations. The brokered filibuster deal technically included only judicial nominees, not nominees to other posts, but the Democratic filibuster following so closely after the deal certainly marked an abrupt end to any alleviation of tensions in the Senate and amounted to a deliberate poke in the eye to the "moderate" Republicans who had brokered the deal. The terms "chump" or "schmuck" come to mind.
With respect to judicial nominees, Democrats had argued that extended deliberation and supermajorities ought to be required for judicial nominees because these judges would serve lifetime terms. The action against the Bolton nomination, not a life-time appointment, demonstrates that the term of the appointment was never really a concern of the Democrats.
