Let's Make a Deal

David Brooks editorialized in the NYT ill Frist should have taken the deal. Last week, the Senate Democratic leader, Harry Reid, made an offer to head off a nuclear exchange over judicial nominations. Reid offered to allow votes on a few of the judges stuck in limbo if the Republicans would withdraw a few of the others. But there was another part of the offer that hasn't been publicized. I've been reliably informed that Reid also vowed to prevent a filibuster on the next Supreme Court nominee. Reid said that if liberals tried to filibuster President Bush's pick, he'd come up with five or six Democratic votes to help Republicans close off debate. In other words, barring a scandal or some other exceptional circumstance, Reid would enable Bush's nominee to get a vote and probably be confirmed. Reid couldn't put this offer in writing because it would outrage liberal interest groups. Frist said he'd think about it, but so far he's let it drop - even though clearing the way for a Supreme Court pick is one of the G.O.P. goals in this dispute.

An offer by a Democrat to do something that he can't afford to acknowledge for fear of offending liberal interest groups, on ONE Supreme Court nominee, when replacing a Conservative with another Conservative would not change the balance in regard to abortions, is NOT a good deal.

Reid is the one that should have taken Frist's offer. The Dems were ticked off that the Republicans bottled his nominees up in committee and did not even let them out for an Up or Down vote. Frist was willing to set a rule that would allow all nominees to get an Up or Down vote, regardless of whether they were nominated by a president of the party controlling the Senate or the opposition party.

Speculation about why Frist has let it drop goes in different directions. Perhaps he didn't know if he could trust Reid to make good on his promise.

I certainly would not trust him.

Perhaps he didn't think he could sell this agreement to his own base without publicizing this private part of the deal.

A public deal that has something for both sides is far superior to one that has some parts hidden, which may or may not be honored in the future.

Perhaps he wants to keep this conflict going to solidify his support among social conservatives for his presidential run. Perhaps he believes as a matter of principle the judicial filibuster must be destroyed.

At any rate, it's now more likely that Republicans will go ahead and change the filibuster rules

Good for them

, and Democrats will begin their partial shutdown of the Senate.

If they are that stupid, let them do it.

But Frist should have grabbed Reid's offer. He should have done it, first, because while the air is thick with confident predictions about what will happen if the nuclear trigger is pulled, nobody really knows. There is a very good chance that as the battle escalates, passions will surge, the tattered fabric of professionalism will dissolve, and public revulsion for both parties will explode.

I certainly would not use the word professionalism in describing the Democrats behaviour.

If you are leading one of the greatest democratic institutions in history, it's irresponsible to lead it into this bloody unknown if a deal on the table will give you much of what you want. As one senator who supports changing the filibuster rules says, "Is this what you want on your obit?"

Second, Frist should have grabbed this offer because it's time for senators to re-establish the principle that they, not the outside interest groups, run the Senate. Right now, most senators want to avoid a meltdown. It's the outside interest groups that are goading them into the fight.

If Reid could not make public a part of his offer for fear of liberal special interest groups, it would seem obvious that his offer left them in control. Or is it only conservative special interest groups that David is concerned about?

Of course the groups want a fight. The activists get up every morning hoping to change the judiciary, dreaming of total victory. Of course they're willing to sacrifice everything else for that cause. But senators are supposed to know that serving the interest groups is not the same as serving the people: it is serving a passionate but unrepresentative minority of the people. At some point, leaders are supposed to stand up to maximalists, even the ones they mostly agree with.

Finally, it's time to rediscover the art of the backroom deal. There are two ways the Senate can work. The Senate could be a legal battleground in which the two parties waged all-out struggles to rig the procedures so they got what they want. In this model, the Democrats would go on abusing the filibuster until the Republicans muscled through procedural changes.

Or the Senate could be the home of informal arrangements. In this model, leaders of the two parties would get together - yes, often in secret - and make reasonable bargains.

Such as the bargain that George Bush reached with Ted Kennedy regarding No Child Left Behind, which the Dems supported at the time, but now are criticizing Bush for, because the Teacher's Unions dont want to have their performance measured?

They would rarely settle things on pure principle,

Having Congress do something on Principle? Heaven forbid.

but they'd hope for agreements in which each side achieved a portion of its goals. They wouldn't try to decide once and for all whether the filibuster was good or evil. They'd allow it, within reason. This backroom deal-making model went out of fashion after Watergate, but it is much better than what's come since.

The deal Reid was heading toward, and the deal that other senators like Ben Nelson are still working toward, would give Democrats some say over confirmations. But it would give Republicans up or down votes on most nominees, including the big ones, for the Supreme Court.

Sometimes statesmanship isn't television combat. It's just a clever wink and a prudent nod. It's just possible that Bill Frist and his colleagues might have something to learn from the spirit of Henry Clay.

Ezra Klein blogged If Reid offered to unilaterally lay down arms no matter how crazy-insane Bush's nominees were, Frist should've jumped.

That was not Reid's offer. It was to let two judges through if all others were dropped and if the Dems could pick another judge.

Kevin Drum blogged I don't often agree with Brooks these days, but I think he's on target here. This is not a symmetrical situation — conservative activist groups are way farther off the deep end these days than liberal ones — but it's still a good thought for both sides. Making every fight into a game of nuclear chicken isn't the right way to run a country.

That depends very much on your perspective. I think the liberal ones are much farther off in the deep end.