No sooner do I toss out a few thoughts on judicial filibusters than the Senate comes to a deal. Looks like a variation on the “explicit compromise” option. So now the question is whether this is a good thing.

I think what the Democrats have been doing with filibusters was abusive. In its scope and scale it was an unprecedented escalation of the judicial confirmation wars. I wanted it stopped. But at the same time I didn’t particularly like the so-called “constitutional option”. It felt like yet another escalation, when what I really hoped for was that both sides would find a way to stand down.

The hard-core partisan part of me — the one that wanted the Democrats punished for their abuse of the filibuster, to see them driven before me and to listen to the lamentations of their women — sorry, let me start over. Part of me wanted to see the Democrats crushed for their abusive behavior. The deal doesn’t do that, and that made me angry. But on reflection this changed a bit.

A lot hinges on what happens next. What I’d really like to see is a return to the status quo ante, in which the filibuster is available for truly extraordinary circumstances but essentially never invoked. (The Abe Fortas case is the paradigm. Fortas lacked majority support, a fact which the bipartisan filibuster of his appointment made clear.) It is possible that the current deal provides a face-saving way for the Democrats to return to that status. If so, I’d consider the deal a good thing overall. The key question is how the Democrats will define “extraordinary circumstances” going forward. Frist needs to move appointees through the confirmation process as rapidly as possible to get the answer to that question. If the Democrats view this as “we confirm Owens, Brown and Pryor and keep filibustering everybody else” then we’re basically back where we started.

I’m not particularly happy about having to depend on the honor or good sense of the Democratic party, since their behavior over the last several years strongly suggests they don’t have much. But time will tell. The fact that hard-core partisans on both sides are angry about the deal suggests it’s at least potentially a reasonable compromise.

Also, anything that makes it less likely that John McCain will ever be president is a strong silver lining.

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