There are a few key ways in which the discussion of the compromise over the President’s Appeals Court nominees misses the mark.
First: the critics on both side (and especially on the right) seem to think that it is logically legitimate to compare the compromise to an idealized perfect outcome. Yes, any outcome compared to getting 100% of what one wants appears to be a bad deal. However, there were no guarantees that the were 51 votes (or even 50+Cheney) to allow for the “nuclear�? option. Indeed, since 7 Reps signed on to this deal, it would seem that there were enough who weren’t convinced of the wsidom of that option that success was not a foregone conclusion.
If one compares a real outcome to one’s ideal, one will always be disappointed (which is why hardcore partisans are often disappointed by legislation, as it rarely reflects a pure ideological position).
News to the Right: getting Owen, Pryor and Brown guaranteed is, in fact, a victory regardless of what happens to the others. News to the Left: as I keep saying: a conservative Republican President is going to appoint, and has the right to expect confirmation, of conservative judges. However, blocking some of those nominees is also a victory.
And yes, I supported the nuclear option, but only because I felt that the minority was abusing its veto powers. While it was legitimate for the Democrats to use the filibuster as it did, it also was legitimate for the Republicans to pursue the extreme response to that usage. As such, both parties were engaged in “nuclear” activity, insofar as both were extreme weapons in the arsena of the each party–and hence the showdown. Given the extreme version of both positions, it is hardly a surprise that a compromise was reached at the eleventh hour. I do think that a compromise would not have come about without the threat of the nuclear option–as such, Frist’s strategy did work to some degree. Indeed, the whole point of a threat of nuclear attack is to get the other side to back down, yes? Of course in real life, such backing down rarely results in 100% capitulation.
Second: countless commentators are treating the Republicans and Democrats as ironclad monoliths. This is not how the Senate works—and, indeed, not how the Congress works (although the House is so configured as to allow the Leadership far greater sway than they have in the Senate, but the Stem Cell vote in the House this week makes my point). The Senate is composed of 100 individuals who have the right to behave as they wish. They are not foot soldiers who are supposed to do what they are told.
Third: it seems as if people don’t understand how this agreement works. It is not a treaty between Frist and Reid, or between “THE Republicans” and “THE Democrats”—it is an agreement between swing voters on both sides of the aisle. The swing-voters on the Rep side are agreeing, for the moment, not to “go nuclear,” and the swing-voters on the Dem side are agreeing, for the moment, to vote for cloture in a set number of cases and to be restrained in supporting filibusters for other nominees.
As such, we have largely simply gone back to the status quo ante: a situation in which the filibuster threat always existed, but was seen to be an extreme tool for this type of usage. Please note: this can all change if the swing-voters on the Rep side decide that the swing-voters on the Dem side aren’t holding up their end of the bargain.
(Such is the nature of “swing�? votes).
Therefore: the issue of deeming nominees “extreme�? is focused on six of the Democratic swing-voters, as they hold the power to sustain a filibuster (assuming Jeffords plus the rest of the Democrats won’t vote for cloture). In reality it has always boiled down to 6 Democrats.
The test here is not whether Schumer or Reid or whomever will consider future nominees “extreme�? or “radical�? or whatever. Indeed, I expect the rhetoric to rage on—and that should be no surprise.
Generically, I see no problem with this compromise. It is a wholly legitimate action within the rules and procedures of the Senate (not to mention generic legislative behavior).
In short: if one side can’t get the votes to do something (in this case the Reps can’t get the votes for the nuclear option and the Dems can’t maintain the filibuster, at least in some key cases) then that something doesn’t happen. That is the way that legislatures work.
And those who wish to argue that the will of the majority in the Senate has been thwarted here are wrong: at the moment there is no majority on the overall way to deal with the filibuster in the Senate for judicial nominees, and hence nothing changes. Again: that is how legislatures work.
As I said yesterday: welcome to democracy.
Update: As I catch up on my reading, I see that Professor Bainbridge has some good examples of folks on the right who are upset.
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May 26th, 2026 at 2:53 pm
I absolutely agree with you and have posted on this several times. Good insights!
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