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Senate Side of the US Capitol - Spring 2011 Washington DC Photo by kempsternyc(DK ID) email: folmarkemp@gmail.com
There's some serious nonsense swirling around the filibuster reform fight just now, and I suspect it has a lot to do with the traditional media's tendency to view all bipartisan deals through rose-colored glasses, but especially those that can be recalled with misty-eyed nostalgia.

This appears to hold true for the Gang of 14's agreement, and in this case, the glow of nostalgia adds a coat of whitewash, as well. In the popular retelling, the Gang of 14 came together in 2005 to take the "nuclear option" off the table. The agreement, this legend holds, defused the tense standoff between Senate Democrats, who were filibustering several judicial nominations made by then-President George W. Bush, and Senate Republicans, who were threatening to exercise the majority's prerogative to sustain a ruling cutting off debate on those nominations, thereby establishing a new precedent against judicial filibusters right smack in the middle of the 109th Congress.

And indeed, the standoff did end without such a precedent being established, and with the agreement of the Democratic signatories to the agreement to support cloture on most of the judicial nominations then pending (with two agreed-upon exceptions), and on such nominations yet to come, unless those nominations presented "extraordinary circumstances," though the term was not defined. So perhaps we shouldn't blame folks for coming away from the episode with vague memories of the nuclear option being "defused." And that in turn is probably what's fueling the desire to see a similar agreement forged, to once again defuse today's Senate tensions, and eliminate the "danger" of simple majority rule making.

But if you actually look at the Gang of 14's written agreement—and yes, they did commit their agreement to paper—you'll find that this nostalgic recollection simply isn't borne out by the facts. Rather, the Gang's agreement actually recognized and enshrined the majority's right to exercise the nuclear option. In fact, it was the essential piece of the agreement that gave it it's force.

The relevant text of the agreement, via Wikipedia, appears below:

Part II: Commitments for Future Nominations

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should be filibustered only under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

Part A embodied the commitments of the seven Democratic signatories to the agreement. They agreed to filibuster judicial nominees only under extraordinary circumstances.

Part B embodied the commitments of the seven Republican signatories. And they agreed to oppose rules changes (in the 109th Congress, anyway) accomplished by any means other than by unanimous consent or the current cloture rules, that is, where a 2/3 vote would be required to invoke cloture on any proposed change.

So, do we see what this agreement really meant? It did not commit the Republican signatories to opposition in principle to accomplishing rules changes by other means, namely the nuclear option. It simply committed them to withholding their votes in favor of such a procedure, so long as Democrats agreed not to filibuster judicial nominees—and even then, only for the duration of the 109th Congress. Should the Democratic signatories, in the judgment of their Republican peers, have violated their agreement, the Republicans would presumably have been entitled to vote for an exercise of the nuclear option.

That's a far cry from the fantasy version of the Gang of 14 agreement, which people seem to believe somehow undermined the legitimacy of the nuclear and/or constitutional option. Indeed, if the signatories had not recognized its legitimacy, their agreement would have been entirely without force. Democrats would have signed away their right to filibuster judicial nominees in exchange for ... nothing at all. And the penalty for violating the agreement would likewise be ... nothing at all.

Obviously, that's a nonsensical view of the true history of the Gang of 14's agreement. Yes, it's true that it avoided a serious and worrisome confrontation. It's also true that a similar agreement could theoretically do the same today. But the Gang of 14's agreement could not have worked, and no such agreement could work today, unless based on a recognition of the legitimacy of the threat to change the rules by majority vote. Nor would any such agreement today merit any comparison to the Gang of 14's agreement unless it was enforceable against breaches in the same way, that is, by the exercise of the majority's right to end debate on a proposal to change the rules and pass those changes by a simple majority vote.

Help make the filibuster a real, talking filibuster. Sign our petition.

Originally posted to David Waldman on Tue Dec 11, 2012 at 07:39 AM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  Why is it... (10+ / 0-)

    that every "bipartisan" agreement is dramatically skewed in favor of the republicans, who are usually wrong or being bullies.  

    It's not easy being a Floridian: PS I'm a lawYER now; no longer a lawSTUDENT.

    by lawstudent922 on Tue Dec 11, 2012 at 07:59:25 AM PST

  •  The GOP will abolish the filibuster COMPLETELY ... (6+ / 0-)

    ... if they ever get a Senate majority again.

    This is not a guess, this is not an opinion, THIS IS A FACT.

    Look at the ALEC agenda being pushed in the state legislatures. They don't put up with filibusters, quorum requirements, cooling-off periods, mandatory debate, procedure, none of that shit.

    Whenever the GOP gets control of a state legislature, everything is RAMMED THROUGH as fast as physically possible.

    The majority of GOPbaggers in the US Senate are on the ALEC payroll too, so it is utterly safe to presume without even the slightest doubt the same blueprint will be followed.

    Thus it is GUARANTEED the GOP will use the "nuclear option" on the filibuster as soon as it possibly can.

    Therefore the Democrats, as a matter of self-preservation, have no choice but to beat them to it.

    Go nuclear. END the filibuster.

    •  That's a very good point (0+ / 0-)

      All we are looking at is cajoling hoping Delocrats agree to play by rules the GOP never will

      Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

      by Mindful Nature on Tue Dec 11, 2012 at 10:24:12 AM PST

      [ Parent ]

    •  they'll only do that if they need to (0+ / 0-)

      otherwise, no.

      An ambulance can only go so fast - Neil Young

      by mightymouse on Tue Dec 11, 2012 at 08:01:39 PM PST

      [ Parent ]

    •  Democrats are weak. (1+ / 0-)
      Recommended by:
      mightymouse

      They have the majority in the Senate so make it just like the House - MAJORITY RULES.

      Nancy Pelosi cannot filibuster or obstruct.  Why should McConnell be allowed to obstruct?

      How about this:  Just say the rules of the US Senate are the same rules for the US House.

    •  Legislature (1+ / 0-)
      Recommended by:
      mightymouse
      Whenever the GOP gets control of a state legislature, everything is RAMMED THROUGH as fast as physically possible.
      Once they get control of the legislature, they rubber-stamp legislation as fast as possible to do as much damage as they can as fast as they can.

      In 2010, Minnesota nearly had the same results as did Wisconsin. The GOP took both chambers of the legislature, and the gubenatorial election was very, very close. Emmer, the GOP candidate would have been as bad - if not worse - than Scott Walker. Fortunately, Dayton won. Now the Democrats in Minnesota took back both houses of the legislature in the 2012 election.

      Remember the old saying "all politics are local"? For the GOP, "all politics are national." Republican candidates rubber-stamp a national agenda. They only vote "no" when their vote isn't needed, and the GOP gives them permission.

      The wolfpack eats venison. The lone wolf eats mice.

      by A Citizen on Tue Dec 11, 2012 at 09:41:29 PM PST

      [ Parent ]

  •  The Dems already gave up the filibuster (3+ / 0-)
    Recommended by:
    ferg, bear83, mightymouse

    when they signed the "Gang of Fourteen" agreement. When you don't filibuster Samuel Alito, you effectively don't have it.

    Let's make the Republicans give it up too.

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Tue Dec 11, 2012 at 07:33:48 PM PST

  •  This "rights of the minority" jabber is (9+ / 0-)

    complete crap. When did the rights of the minority trump the right of the majority to pass meaningful legislation. Diane Feinstein keeps talking about the "rights of the minority." No one is proposing stripping legislators from the minority party of their right to vote - just to hold things up endlessly.

    "The two pioneering forces of modern sensibility are Jewish moral seriousness and homosexual aestheticism and irony." Susan Sontag

    by Shane Hensinger on Tue Dec 11, 2012 at 07:36:56 PM PST

  •  Typical. (0+ / 0-)

    Republicans dropped out of the bipartisan Gang as soon as a Democrat was elected. I haven't forgotten. Frankly, I'm surprised the "Democrats" on this Gang have.

    The victorious strategist only seeks battle after the victory has been won, whereas he who is destined to defeat first fights and afterwards looks for victory.

    by Pacifist on Tue Dec 11, 2012 at 07:39:37 PM PST

  •  Democrats have to be close to getting 51 votes (4+ / 0-)
    Recommended by:
    mightymouse, 417els, ferg, diggerspop

    to change the rules in January - 48 either voted for Senator Merkley's changes in Jan 2011 or are newly elected and committed to supporting filibuster changes. Assuming no one has changed their mind from 2 years ago, Democrats need just 3 of the remaining 7 for a majority: Baucus, Feinstein, Inouye, Kerry, Pryor, Reed, and Reid.

    Baucus, Pryor, Reed and Reid voted no last time, and Feinstein, Inouye, and Kerry did not vote.

    http://www.dailykos.com/...

    I hope Senator Reid does not fall for another pledge of cooperation from McConnell - Reid's support is key. I expect McConnell would say anything the next 3 weeks to avoid a rules change in 2013, but Mitch has shown that he cannot be trusted. When you even filibuster your own damned bill minutes after it was proposed, somethings go to change.

    Filibuster reform now. No more Gentleman's agreements.

    by bear83 on Tue Dec 11, 2012 at 07:48:35 PM PST

  •  Shouldn't that be obvious? (2+ / 0-)
    Recommended by:
    mightymouse, dharmafarmer

    If there were no right to the so-called "nuclear option", there would have been no need for the Gang of 14.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Tue Dec 11, 2012 at 07:49:07 PM PST

  •  So We're diving off the Fiscal cliff (1+ / 0-)
    Recommended by:
    annieli

    Nuking the Filibuster
    and
    Detonating the planet Wide Economy when the GOP refuses to raise the debt ceiling......

    Who's running Washington?   Jerry Bruckheimer


     
     
     

    The 1st Amendment gives you the right to say stupid things, the 1st Amendment doesn't guarantee a paycheck to say stupid things.

    by JML9999 on Tue Dec 11, 2012 at 07:54:18 PM PST

  •  The site seems really tweaky tonight (0+ / 0-)

    Or is it just me? Sorry for the off topic post.



    Those who do not move, do not notice their chains. Rosa Luxemburg

    by chuckvw on Tue Dec 11, 2012 at 07:58:11 PM PST

  •  it's still about alliances not discussed in puble (0+ / 0-)

    yksitoista ulotteinen presidentin shakki. / tappaa kaikki natsit "Nous sommes un groupuscule" (-9.50; -7.03) 政治委员, 政委‽ Warning - some snark above ‽

    by annieli on Tue Dec 11, 2012 at 07:58:43 PM PST

  •  Lets Be Clear (2+ / 0-)
    Recommended by:
    417els, ferg

    The Gang of 14 was about avoiding the "Nuclear Option, which was the changing of the rules mid-term by majority vote.  What we are talking about now is the "Constitutional Option" which is in essence enacting new rules at the very beginning of the session by majority vote, which has is based on substantial historical precedent.

    "Some men see things as they are and ask, 'Why?' I dream of things that never were and ask, 'Why not?"

    by Doctor Who on Tue Dec 11, 2012 at 08:04:06 PM PST

    •  But that brings us back to the (1+ / 0-)
      Recommended by:
      blue denim

      still-unsettled debate over whether the Senate is a "continuing body" or not. If the former, then what you are calling the "Constitutional Option" is a non sequitur.

      "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

      by bryduck on Wed Dec 12, 2012 at 02:29:25 PM PST

      [ Parent ]

      •  Well, maybe not... (0+ / 0-)

        My take is the Constitutional Option is the rare case of clever labeling by my Democratic Party.  "Constitutional Option" sure sounds better than "Nuclear Option".

        Seems to me that a new Congress presents an opportunity to revisit the rules for even a "continuing body" that is not required to adopt or re-adopt its rules at the start of the new session. Of course the debate is unsettled.  The GOP will make any rule change into a controversy. But now is the time.

        See page 5 of The First Day of a New Congress: A Guide to Proceedings on the Senate Floor by the Congressional Research Service for a brief discussion.

        "In the end, we will remember not the words of our enemies but the silence of our friends" -Martin Luther King Jr

        by blue denim on Wed Dec 12, 2012 at 03:48:43 PM PST

        [ Parent ]

        •  As I recall, "nuclear" was (1+ / 0-)
          Recommended by:
          blue denim

          abandoned by Rs in favor of "Constitutional." Those of us on the left continued to use the former term as a means of revealing to the citizenry its volatile nature.

          "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

          by bryduck on Wed Dec 12, 2012 at 03:54:14 PM PST

          [ Parent ]

  •  BASIC RULE: Democrats are Weak (0+ / 0-)

    Never forget that Clarence Thomas was approved by a Democratic controlled Senate.

    Democrats always fold in the Senate.

    They may make the Motion to Proceed non-debatable, but that will be about it.

  •  Jiminy Cricket people! The Beltway's (4+ / 0-)
    Recommended by:
    417els, ferg, wsexson, mightymouse

    priority, using the Media as its agit-prop apparatus, will always push the least possible democratic option.

    After all these decades it is really a pity that we act as though this is unexpected; even worthy of more than a passing remark.

    If the Gang of 14 agreement did not exist, some other red herring would be thrown at us. "Democratic power grab" or maybe something a little more balanced.

    Instead of being surprised, shocked, amused, and the rest of our ineffective poses, can we please, please, please, start to focus on creating a way to get the garbage-spewing pundits out of the limelight. And in its place some honesty, sense, and real discussion presented to the people at large.


    The Internet is just the tail of the Corporate Media dog.

    by Jim P on Tue Dec 11, 2012 at 08:14:57 PM PST

  •  Ask the basic question: (0+ / 0-)

    Why can the House of Representatives be majority control and not the senate?

    How come Nancy Pelosi (next congress) can represent 200+ members of a 435 member body and have virtually no power at all.

    Why do the Democrats give their Republican opponents more power then the Republicans give in the House?

    NEW RULE: The rules of the Senate are the same as the House.

  •  Just stupid how weak the Democrats are. (0+ / 0-)

    Maybe the events in Michigan have me more fired up than usually, but maybe that is good.

    Time to learn to never ever trust a Republican.

    A deal with McConnell?  No way!  Go full majority control in the Senate.

    End this BS where McConnell can speak for an hour everyday and be on the news.  Nancy Pelosi does not get all the time she wants in the House.

  •  This is completely off-topic but... (0+ / 0-)

    I was under the impression that having a Dkos subscription meant no ads.

    I've been seeing ads the last couple days. Anyone know if the site policy changed?

    "That men do not learn very much from the lessons of history is the most important of all the lessons of history." ~ Aldous Huxley

    by markthshark on Tue Dec 11, 2012 at 08:25:20 PM PST

  •  It makes each Senator more powerful (1+ / 0-)
    Recommended by:
    mightymouse

    I despair that the Senate will ever change the rules much. The filibuster that makes it one of the least democratic 'deliberative' bodies on the planet, and that makes US democracy nearly unworkable, gives each Senator much more power than any would have if the majority could rule.

    The Senate's rule-making power is in the Constitution. I despair that it will take a constitutional amendment to get rid of the filibuster.

  •  Robert's Rules of Order: "Standing Rules contain (1+ / 0-)
    Recommended by:
    mightymouse

    only such rules as may be adopted without previous notice by a majority vote at any business meeting. The vote after
    adoption...may be reconsidered. At any meeting they may be suspended by a majority vote or rescinded by a 2/3rds vote. If notice of the proposed action was given at a previous meeting, they may be amended or rescinded by a majority vote."--Article XI ROR Revised 1915

    The Senate club having a filibuster right is based entirely on a fictious  perpetual Senate and clearly outside democratic norms such a ROR.
    Reid has given McConnell such notice.
    Rescind the Senate filibuster for the 113th Congress.
    I don't see GOP has a leg to stand on.

    •  I like your finding of other info, but... (0+ / 0-)

      to me the sole power at the start of any new Congress is  the Vice-President in his capacity as the "President of the Senate."

      He calls the meeting to Order and rules are adopted.  

      Maybe the old rules are adopted, maybe not.  However at the start of each new Congress I see the VP as being in control.

      There are Roberts Rules of Orders and even Common Law principles of how any body forms at the start of a session, but the VP is in charge at least for a while.

      •  The VP is the 'moderator' only IMO , the slave of (0+ / 0-)

        procedure.
        "May it please your Majesty, I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here."-William Lenthall Speaker of the House(Long Parliment)-1642

        •  Maybe not? (1+ / 0-)
          Recommended by:
          dharmafarmer

          I think a VP acting as "President of the Senate" has as much power as he can claim.  

          He can always cite the constitution as his authority.  It would be interesting to see some of the constitutional debate on the VP in the senate and what power was envisioned.

          •  But that would be acting undemocratically, no? (0+ / 0-)
          •  Here is some writing on VP Power: (0+ / 0-)

            Joseph Story, Commentaries on the Constitution 2

            § 737. A question, involving the authority of the vice president, as presiding officer in the senate, has been  much discussed in consequence of a decision recently made by that officer. Hitherto the power of preserving order during the deliberations of the senate in all cases, where the rules of the senate did not specially prescribe another mode, had been silently supposed to belong to the vice president, as an incident of office. It had never been doubted, much less denied, from the first organization of the senate; and its existence had
            been assumed, as an inherent quality, constitutionally delegated, subject only to such rules, as the senate should from time to time prescribe. In the winter session of 1826, the vice president decided in effect, that, as president of the senate, he had no power of preserving order, or of calling any member to order, for words spoken in the course of debate, upon his own authority,
            but only so far, as it was given, and regulated by the rules of the senate. This was a virtual surrender of the presiding power (if not universally, at least in that case) into the hands of the senate; and disarmed the officer even of the power of self-protection from insult or abuse, unless the senate should choose to make provision for it. If, therefore, the senate should decline to confer the power of preserving order, the vice president might become a mere pageant and cipher in that body. If, indeed, the vice president had not this power virtute officii, there was nothing to prevent the senate from confiding it to any other officer chosen by itself. Nay, if the power to preside had not this incident, it was difficult to perceive, what other incident it had.
            The power to put questions, or to declare votes, might just as well, upon similar reasoning, be denied, unless it was expressly conferred. The power of the senate to prescribe rules could not be deemed omnipotent. It must be construed with reference to, and in connexion with the power to preside; and the latter, according to the common sense of mankind, and of public
            bodies, was always understood to include the power to keep order; upon the clear ground, that the grant of a power includes the authority to make it effectual, and also of self-preservation.

          •  The VP issues opinions. (1+ / 0-)
            Recommended by:
            blue denim

            Here's Nixon, for instance, on the first day of Congress in 1957 when the Constitutional Option was being attempted:

            Vice President Nixon issued the following opinion while presiding in the Senate: “[W]hile the rules of the Senate have been continued from one Congress to another, the right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of a previous Congress. Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional.”
  •  Ignore the Filibuster (0+ / 0-)

    The best thing to do is to ignore the filibuster and simply bring up legislation with self-contained rules. If the majority votes for the bill then it ends the filibuster. If anyone objects, the chair can rule that it is proper and it only takes a majority to support that decision.

    This is the way to show the filibuster for what it is. A pretense that would be a foma if only it were harmless.

  •  How to cripple the Executive Branch (2+ / 0-)
    Recommended by:
    mightymouse, dharmafarmer

    In his State of the Union Address on January 24, 2012, President Barack Obama received applause from the assembled Congress when he called for reform of Senate rules:

    “Some of what’s broken has to do with the way Congress does its business these days.  A simple majority is no longer enough to get anything -– even routine business –- passed through the Senate.  (Applause.)  Neither party has been blameless in these tactics.  Now both parties should put an end to it.  (Applause.)  For starters, I ask the Senate to pass a simple rule that all judicial and public service nominations receive a simple up or down vote within 90 days. (Applause.)”  
    There are 170 unconfirmed Presidential nominees awaiting approval from the United States Senate.  

    "In the end, we will remember not the words of our enemies but the silence of our friends" -Martin Luther King Jr

    by blue denim on Wed Dec 12, 2012 at 01:27:30 AM PST

    •  to let this continue = legislative malpractice (2+ / 0-)
      Recommended by:
      dharmafarmer, blue denim

      An ambulance can only go so fast - Neil Young

      by mightymouse on Wed Dec 12, 2012 at 04:31:15 AM PST

      [ Parent ]

      •  You say this as if (0+ / 0-)

        Republicans aren't actively pursuing that as policy.

        "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

        by bryduck on Wed Dec 12, 2012 at 02:31:16 PM PST

        [ Parent ]

        •  to let this continue = legislative malpractice (1+ / 0-)
          Recommended by:
          blue denim

          by Democrats.

          Dems have the votes to stop it the first day of the new Senate.

          An ambulance can only go so fast - Neil Young

          by mightymouse on Wed Dec 12, 2012 at 03:57:50 PM PST

          [ Parent ]

          •  That assumes the (1+ / 0-)
            Recommended by:
            blue denim

            Constitutionality of the filibuster reform under consideration. (Not a bad assumption, imho, but not one that has been tested yet, either.)

            "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

            by bryduck on Wed Dec 12, 2012 at 04:09:41 PM PST

            [ Parent ]

            •  The Dems need to press forward on this... (2+ / 0-)
              Recommended by:
              bryduck, mightymouse

              ...and any filibuster reform must include a way that brings movement to the advise and consent process.  What the Republicans are doing right now with Presidential appointments is a partial nullification of the presidential election.  

              But here's a question: Has the Senate Parliamentarian advised on whether the rules can be changed at the beginning of a session?

              Here's a link to Riddick's Senate Procedures. Go to pages 1220-1224.  

              The rules of the Senate continue from one Congress to
              another, "unless they are changed as provided in these
              rules."

              "In the end, we will remember not the words of our enemies but the silence of our friends" -Martin Luther King Jr

              by blue denim on Wed Dec 12, 2012 at 05:24:13 PM PST

              [ Parent ]

              •  I know--I've seen that line (1+ / 0-)
                Recommended by:
                blue denim

                too. So frustrating, because nowhere "in these rules" are they delineated, at least in their online version!
                Grrrrr.

                "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

                by bryduck on Wed Dec 12, 2012 at 05:35:11 PM PST

                [ Parent ]

            •  filibuster not a constitutional issue (0+ / 0-)

              An ambulance can only go so fast - Neil Young

              by mightymouse on Wed Dec 12, 2012 at 06:26:37 PM PST

              [ Parent ]

              •  It absolutely can be--nobody has ever (0+ / 0-)

                sued over it and brought a case to the SC before, that's all. Since it isn't in the Con itself, it can easily be defined as unConstitutional by an "originalist" suit, for example.

                "Lone catch of the moon, the roots of the sigh of an idea there will be the outcome may be why?"--from a spam diary entitled "The Vast World."

                by bryduck on Thu Dec 13, 2012 at 01:22:07 PM PST

                [ Parent ]

  •  Specter stopped the nuclear option (0+ / 0-)

    It was going to happen. Specter stopped it.

    Senior Republican sources tell Fox, Senate Majority Leader Bill Frist and The Bush Whitehouse were worried enough about possibly losing the vote to end judicial filibusters that they dispatched two conservatives, SC Lindsey Graham and Ohio's Mike DeWine to cut the best possible deal.

    The principle source of anxiety was Judiciary Chairman Arlen Specter. Top GOP sources say it was unclear until the last minute how Specter would vote...

    Dewine said uncertainty was very real.

    DeWine:
    "No one knows how the vote on the Constitutional Option would have come out. We might have won. We might have lost. If we lost it would have been devastating to the president."

    Specter:
    "I can do alot better with divergent interests if I maintain as close to a centrist position as possible and that means keeping quiet."  

    Specter seemed to hint at that outcome as he told reporters that the separation of powers between the president and Congress "functions best when people are a little uncertain as to how it is going to work out."

    In other words, if Bush knew his nominee needed 60, not merely 51, then he might choose a less conservative nominee.

    The Senate and Bush "are now back to pre-1987 (before the defeat of conservative Supreme Court nominee Robert Bork). Everything is a little on tippy-toes as to how to proceed and that is the best way for our separation of powers," Specter said.
    MSNBC 5/24/2005

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