SoftMoneyHardLaw on Fillibuster compromise:

[chomskysright]

These people are a wonderful resource re: 501c3's and 'the law' in general. They are obvious Dems.

http://www.moresoftmoneyhardlaw.com/articles/20050525.cfm

The Nuclear Option and the Nature of Compromise
Posted: 5/25/05
Related topics: Other Related Legal Developments


".....The fine print of the agreement bears some more marks of compromise in the commonly understood sense. It is limited to the 109th Congress, and its essential terms are left undefined and submitted to the discretionary interpretation of the "signatories." The agreement counsels against filibuster except in "extraordinary circumstances," but then provides that "each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."

This last undertaking presents the largest challenge in understanding the reach and significance of the agreement. In effect, the agreement leaves to each signatory the choice to undo it. And so a minority within the minority holds the power to make or break the deal. Already one of the signatories, Senator Lindsey Graham, seems to believe that the agreement precludes the use of the filibuster against Supreme Court nominees in this Congress. The Washington Post reports today his view that "If there’s a filibuster for a Supreme Court nominee in the future, where one of the seven Democrats who signed the letter participates , all bets are off." Charles Babington, "Senate Set to Vote on Delayed Nominee," Washington Post, May 25, 2005 at A14. By this interpretation, a Presidential nomination constitutes "ordinary" circumstances. Senator Frist has embraced this view.

The media have focused on the word "extraordinary," less on the word "circumstances," but it is this last word that might carry the hardest work of interpretation. Republicans outside the circle of signatories are claiming that judicial philosophy or personal ideological commitments have been largely read out of the term "circumstances." That a nominee appears "extreme," by one measure or another, may not be enough. This reading depends in part on how one reads the signatories’ willingness to yield to votes on the more controversial nominations, such as that of Janice Rogers Brown. Some Republicans see this concession as establishing a standard or expectation of ideological acceptability: the nomination of a candidate no more "extreme" than Judge Brown would not be properly treated as presenting "extraordinary circumstances." And the term circumstances could be construed to refer to events and conditions external to the views and qualifications of the nominee. An arrest record, or a low American Bar Association rating, might constitute a circumstance, in the way that expressed, well-established political views would not.

This construction of "circumstances" may also depend on the specific constitutional requirements stressed in the agreement for the discharge of the Senate's "advice and consent" function. The agreement states:

We believe that, under Article II, Section 2, of the United States Constitution, the word "advice" speaks to consultation between the Senate and the president with regard to the use of the president's power to make nominations. We encourage the executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration....."