When conservatives lay out their long list of apostasies committed by John McCain, one of them is always his role in the Gang of 14, the 7 Democrats and 7 Republicans in the Senate who agreed to a judicial compromise in 2005. The deal that was struck eliminated the use of the "nuclear option" by the then-GOP-controlled Senate, and also limited the Democratic minority's ability to use the filibuster to block certain judicial nominees (at the time the deal was stuck, there were no pending Supreme Court nominations, only Appellate Court nominations were being held up).
To put it plainly, the critics of the deal are flat out wrong. Conservatives should thank John McCain and the other Senators who were part of the Gang of 14 for getting three Appeals Court nominees who had been held up, Janice Rogers Brown, William Pryor, and Priscilla Owen, approved quickly and Brett Kavanaugh approved a bit later, and for Samuel Alito making it onto the Supreme Court without a filibuster blocking his way. And they should thank John McCain for preserving for the Republican Party the use of the filibuster on judicial nominations that might be made by a Democratic President beginning in 2009 or later.
At the time of the compromise the GOP held 55 seats in the Senate and 232 in the House, and held the Presidency. The GOP had increased its majorities in both Houses of Congress in the 2004 elections, and President Bush had been re-elected. The continued Democratic filibusters of certain (not all) Appeals Court nominations rubbed many conservatives the wrong way. The filibusters were seen as interfering with the Republican Party's ability to govern with the clear mandate they thought they had just won in the elections. The nuclear option would have enabled Senate Majority Leader Bill Frist to rule that a simple majority vote was sufficient for action on a nominee -- in other words, no invoking of cloture would be required (needing 60 votes) to end a filibuster of a judicial nominee by the minority party.
For the GOP in its then-ascendant state, such a nuclear option seemed like a good way to stick it to the Democrats, and get a bunch of judicial nominees who had been held up through the confirmation process quickly. As mentioned above, 3 Appeals Court nominees were quickly approved after the compromise was struck.
But the big test came when Samuel Alito was nominated to the Supreme Court. Alito was confirmed by a vote of 58-42, with 54 Republicans and 4 Democrats supporting him. Lincoln Chafee, desperately trying to appease Democratic voters in his home state of Rhode Island , was the lone GOP Senator to vote no. (It was not enough to get Chafee re-elected in November, 2006.) But the tally of 58 for confirmation is indicative of the fact that had the 7 Democrats who agreed to the compromise all voted no on a cloture vote, Alito's nomination could have been held up by the minority through a filibuster. But without the 7, the Democrats at best could muster 38 votes for a filibuster, not enough to block. As it was, the vote on cloture was 72-24, as many Democrats, realizing they could not block him that way, agreed to the final vote, and expressed their opposition only on the straight up or down vote for confirmation.
Compared to Judge Alito, Judge John Roberts was approved much more easily, by a vote of 78-22, with 23 Democrats joining all the Republicans in voting for confirmation. Even without the gang of 14 compromise, Roberts would likely have been confirmed. However it is possible, even with Roberts, that knowing a filibuster would be unsuccessful, many Democrats gave Roberts their vote for confirmation.
Let us assume no compromise by the 14 Senators had occurred. Then two things might have happened. The GOP might have decided not to use the nuclear option. In this scenario, Roberts might have been confirmed, but Alito almost certainly not. And the 4 Appeals Court nominees, eventually confirmed, would have been stalled.
The other possibility is that the nuclear option would have been employed. Roberts and Alito would both have been approved, no different than occurred as a result of the gang of 14 deal. And additional Appeals Court vacancies would have been filled -- among them William Myers, Henry Saad and Terrence Boyle. So net, the nuclear option would have resulted in several more Appeals Court nominees getting through. .
Regrettably for the GOP, after the 2006 elections the Republicans became a minority again in the Senate. So the nuclear option would now be useless, since the GOP does not have a majority to force a vote on nominations. The Democrats can bottle up nominees in committee, and even if they let them out to the full Senate for a vote, can vote them down 51-49, with no need for a filibuster. At the time of the consideration of the nuclear option in 2005, Republicans were riding high. They could not contemplate losing 6 Senate seats in the 2006 midterm elections, thereby losing their majority. The nuclear option was a strategy borne of hubris -- that the current GOP majority in the Senate would forever remain a majority, and that Republicans would never (or at least not soon) face the same situation that Democrats did in the 109th Congress -- being in the minority in the Senate with the other Party in the White House.
That situation could play out as early as next year. Things could get a lot worse for the GOP in the 2008 elections. The GOP is likely to lose Senate seats in the upcoming 2008 races, since they have to defend 23 of the 35 contested races, several of them open seats. At the moment, Republicans number 49 of 100 Senators. Let us assume the GOP manages to hold their losses to 3 seats net in 2008 (it could be worse.). So in the next Congress, the GOP would have 46 seats. Let us also assume for the sake of analysis that either Hillary Clinton or Barack Obama is elected President (most odds-makers think the chances of this happening are well over 50%) .
Now let us further assume that the GOP had deployed the nuclear option in the 109th Congress. Would the Democrats get payback by doing the same thing in 2009, applying the nuclear option to insure confirmation of their judicial nominees? I think this would very likely be the path that would be taken. What tools would the GOP minority in the Senate then have to resist any Democratic nominations to the Courts - either the Appeals Court or the Supreme Court (when Stevens and Ginsberg retire), without any ability to successfully apply the filibuster? The answer is none.
Of course, some might argue that the Democrats will deploy the nuclear option regardless of what the GOP did or did not do in 2005, if the Senate Republicans start using the filibuster repeatedly to block judicial nominees (the Democrats did not block all judicial nominees but some they considered controversial). I think not. For one thing, all 7 Democrats who were members of the gang of 14 are still in the Senate, though Mary Landrieu has a tough race this year. I think, these 7 and a few other Democrats would oppose use of the option. That would mean the Democrats could not get a majority for it even if they pick up several seats in the 2008 elections.
The nuclear option was shortsighted. For this approach to help the GOP in any more than one Congressional cycle required the Party to retain control of the Presidency and the Senate in succeeding cycles.
The gang of 14 compromise helped two Supreme Court nominees get approved quickly and a few Appeals Court nominees to be confirmed as well. Use of the nuclear option in 2005 would have enabled a few additional Appeals Court nominations to get through in 2005 and 2006.
But it would also have given a blank check for the next Democratic President who took office with a majority for his party in the Senate to get all of his or her judicial nominations approved from the start. That would be a really bad deal for the GOP, much worse than the gang of 14 deal, a compromise in which the GOP gained more than it lost.Richard Baehr is political director of American Thinker.