Filibuster post mortem
Mark Kleiman is absolutely right:
What I'm sure of is that the deal makes no Constitutional sense.
Either the Constitution allows filibusters to block judicial appointments, or it forbids such filibusters. (It seems to me impossible to distinguish between judicial-nomination filibusters and other filibusters in Constitutional terms, but that's a separate question.)
If the Constitution allows such filibusters, then the threat of the "nuclear option" was an illegitimate threat. A concession made to ward off an illegitimate threat isn't a compromise; it's an act of appeasement.
On the other hand, if the Constitution forbids such filibusters, then it's the Democrats who were exacting concessions by threatening unlawful action, and the Republicans who caved in to that threat. [...]
What makes me saddest is that no one seems to care what the Constitution actually says on the subject. That's not a healthy situation for a constitutional republic.
We'll never defuse the nuclear option unless we discredit it. Otherwise, the threat will persist indefinitely. The latest deal is a temporary reprieve. Now that Frist has raised the issue, there's no going back. It doesn't matter how stable the current coalition is, or whether Frist can be trusted.
What matters is that the public doesn't realize that the nuclear option is illegitimate. This isn't a catch-as-catch-can situation. It's not like there's a legitimate loophole that the Republicans are entitled to exploit if they can. Quite simply, the nuclear option is cheating.
The Republicans can't go nuclear without breaking Senate precedents. Departing from a precedent doesn't sound like a big deal, but it is. Disregarding a precedent in bad faith is as serious as violating a Standing Rule. In the Senate, many of the most important rules are precedents.
The Republicans can't go nuclear unless they're willing to flout at least one well-established precedent. To eliminate the judicial filibuster with 51 votes, the chair must stage a mini-coup by usurping the right to rule on a constitutional point of order that the entire Senate is entitled to vote on. Or he can force an immediate up-or-down vote on that point of order. But the chairman can't force that vote unless he rules that this procedural question isn't open for debate, even though precedent says it is.
In the first scenario the chair simply rules the 2/3 majority rule is unconstitutional. When the Democrats appeal, the Republicans move to table. Moves to table aren't debatable, so there's an immediate vote on the point of order. If the Democrats' appeal is tabled, the chairman's ruling stands with 51 votes.
In the second scenario, the chair allows the Senate to vote on the point of order, but he prevents a debate on the Senate floor. Precedent says that the point is debateable, but the chair won't allow debate. If there's no debate, the Democrats can't filibuster against the point of order. So, the Republicans will destroy the Standing Rule by a simple majority.
Either way, if the Republicans succeed, a new precedent will have been set. From that point onwards, everyone will have to respect that precedent unless they're prepared to stage a counter-coup. That's why everyone's assuming that the judicial filibuster is gone for good if the Republicans deliver their nuclear strike. Precedents are serious business for anyone who cares about the rule of law or the Constitution.
The PR problem is that it's not intuitively obvious why the nuclear option is cheating. It's a real challenge to explain what's wrong in a soundbite. Republican rhetoric focuses on whether the filibuster itself is constitutional. The implication is that if it's not, they're entitled to use any means at their disposal to get rid of it.
Democrats' best bet is to focus on the tactics that the Republicans would have to use to change the rules. Nobody seriously believes those tactics are legitimate. It's pretty clear that the filibuster is constitutionally optional, seeing as the Senate gets to make its own rules. It would be perfectly okay to eliminate the filibuster by a 2/3rds majority vote, but the Republicans are resorting to cheating because they don't have the support they need to change the rules.
We've certainly got our work cut out for us. We should spend our borrowed time wisely.