"Live-blogging the Senate floor debate (ostensibly on Owen)
Beldar
At 9:00 a.m. (Central): Harry Reid just accidentally told the truth on the floor of the U.S. Senate. After saying that he supports the Memorandum of Agreement (the document supposedly calling the Dems on the carpet for routinely filibustering judicial nominees), he said, "Every filibuster is extraordinary." Yes, read that direct quote to yourself again, then look at the document. The Democratic Leader believes that the Democratic signers of the MOA have grounds to filibuster every previously filibustered nominee (except, presumably, Pryor, Owen, and Brown).
He also said, "The nuclear option is dead for our lifetimes." Thankfully, that cannot be true. First, the document only contains a commitment of no rules changes for the 109th Congress, which will end in January 2007 when the 110th Congress is sworn in. Second, at least some of the signers of the MOA won't be back in January 2007 anyway, by their own choice; and the voters may well have reactions that will change the scorecard lineup as well.
At 9:30am: Bless his boozy, craven, liberal, lawyer-like heart, there's a reason that the senior senator from MS (in contrast to its junior senator) still keeps his law license intact. He just performed the first preemptory cross-examination of any Republican signer of the MOU who might waiver and claim he/she's off the hook if the Dem signers are vaguely naughty. He didn't quite use the word "iron-clad," but that's the concept and that's the language, and yes, Teddy absolutely gets both. The message to Graham and DeWine is clear: "Change your mind about voting for the nuclear option, or even claim that you have the right to, and we'll shove this signature of yours up your wazoo sideways on national TV every day for a month running." (He also understands that the commitment only runs through January 2007, avoiding Reid's overstatement.)
Meantime in the blogosphere, Edward Whelan writes:
Any agreement must be read against background contract principles. One of the most elementary principles of contract law is that a material breach by one part excuses continued performance by the other. So there is, I submit, no question that a Republican signatory is not bound to his promise to oppose cloture reform if the Democrat signatories do not live up to their end of the bargain.
That's absolutely right, and that's where Mr. Whelan stops his analysis. Some staff advisor to the Republican signers could and should have insisted that this proposition be expressly written into the MOA. The Dems couldn't have opposed such a demand with a straight face — "No, we insist that we can breach and you're still bound!" isn't something you can say. But I agree with Mr. Whelan that the common law, and public common sense out of which this common law developed, both give the Republican signers this "right" whether the agreement says so explicitly or not.
But that's not where the analysis or the action will stop when the Dem signers refuse to support cloture. My whole point (which others, e.g., Bradford Berenson and Andy McCarthy are also arguing, more succinctly than I have) is that would-be wafflers on the Republican signers' commitment have to say why the "Democratic signatories [have] not live[d] up to their end of the bargain." Because of the subjective "good faith" standard built into the agreement, no such argument could ever be proved, or even persuasively argued, even in the loosey-goosey court of public opinion.
At 9:45am: Back on the Senate floor, Lindsey Graham is still insisting that he reserves the right to vote for a rule change in the 109th Congress if he thinks the Dems are misbehaving. Well, great, Lindsey — except that's not what the document that you signed says. The document takes that discretion to grade the Dems' sincerity away from you, and expressly gives it to the Dem signers themselves. Plain English, short words, fits on one page. Teddy's gonna eat your lunch on this, Lindsey, and that's awfully pathetic.
At 10:00am: Cornyn invokes Rosanne Rosannadanna's line from the old SNL Weekend Update skits: "Never mind!" (Actually, he meant Emily Litella, another Gilda Radner character whom I've had frequent occasion to quote, proving again that the blogospheric debate rivals that of the World's Greatest Deliberative Body, except with hyperlinks.) I think at first he's going to use that line on behalf of Graham and DeWine, to invite them to begin eating crow for signing something so catastrophically drafted, so they can start "walking things back." (Cornyn's own mouth still has crow feathers hanging from its corners.) [Now it's Beldar's turn to use an old SNL line, this one from Steve Martin:] But nooooooooo! Cornyn means that the Dems are saying "Never mind" now about Owen.
At 10:15am: Leahy is annoyed that Frist is insisting on getting a record vote on cloture, just as Reid was at the beginning of the morning. Not content to reinterpret the AG's insistance that he hasn't trashed Owen, Leahy now insists on reinterpreting John Cornyn's insistance that he hasn't trashed Owen, not ten minutes after Cornyn left the microphone. But Leahy's mostly sticking to his pre-MOA script, which I think is canny on his part.
At 10:40am: Back to Reid: "The nuclear option is off the table, and we should stop talking about it after today." No suggestion that the Dems have to do anything specific to keep the nuclear option "off the table" on the MOA. But then back to his pre-MOA script as well.
I'm thinking Frist is making a mistake by getting a record vote on cloture. It will only create a clean precedent showing that the seven Dems who signed the MOA are "living up to their commitment," setting up their future arguments of "treachery!" and "deal-breaking!" when/if any Republicans try to walk back on their commitment not to support a rules change.
Now Reid says it explicitly, after directly quoting the "his or her own discretion and judgment in determining whether extraordinary circumstances exist": "This [MOA] of course is a subjective test, as it always has been." Is Reid reading BeldarBlog? Naw, Beldar just read the Dems' plan (now becoming more clear, from Reid's and Kennedy's arguments) from the language the Dems suckered the seven Republicans into signing.
Oh my gosh, now he's quoting Caro's Master of the Senate ... maybe he is reading BeldarBlog!
At 10:45am: Specter (hoarse and looking very sick) seizes upon Reid's statement that the filibuster will be "occasional" and "very infrequent." (Yeah, right.) The term "extraordinary circumstances," says Specter, "does not lend itself to easy interpretation," so the "occasional" and "very infrequent" words are comforting to him. (Well, except the MOA expressly says who gets to do the interpreting.) But sheesh, Specter now says the MOA maintains the delicate "constitutional check and balance, the very important constitutional separation of power." The nuclear option, sez Specter, would have "materially affected the delicate separation of powers," giving any President greater power; or if defeated, the Dems would have been "emboldened to go further in the use of the filibuster." (Half right; the attempt to change the traditional checks and balances came from the Dems when they started judicial filibustering as a regular party-led matter in 2001.)
At 11:00am: And now the surreal: After a conventional and rambling defense of Owen, Specter concludes with a bizarre anecdote about former Sen. D'Amato singing on the Senate floor while wearing a pig suit, Specter turns the floor back over to Frist. Frist says it's time (noon Eastern) to vote on cloture, and he's right.
At 11:25am: It's sounding to me like virtually the entire Democratic Party contingent in the Senate has jumped aboard the MOU bandwagon. "Obstructing? Moi?" Only a very few "no" votes (e.g,.Corzine & Boxer). "Ayes" from <em>lots</em> of hard-left take-no-prisoners Dems if I'm hearing this right, although it sounds like some are switching back to "no" now near the end.
At 11:30am: 81 to 18, announces the presiding officer ... cloture is approved, and the Senate is in recess (as am I)."
beldar.blogs.com |
