May 23, 2005: It appeared the long-running debate that had stalled the President’s judicial nominations, virtually from the beginning of his first term in 2001, would finally end. Sixty-nine percent of the American people want an up-or-down vote in the Senate on judicial nominees, according to a recent Gallup poll (NewsMax.com, May 25, 2005); and many were hopeful, believing that the Democrats’ deliberate log-jam in the Senate would finally be brought to an end.

Senate Republicans were within hours of passing a procedural rule that would eliminate the Democrats' unprecedented use of the judicial filibuster. It would free up seven of Bush’s circuit court nominees for an up-or-down vote, and it would assure future nominees, particularly to the Supreme Court, an up-or-down vote.

Senate Majority Leader Bill Frist was confident, saying if he failed in the attempt to achieve cloture (which requires a two-thirds vote of the Senate, or 67 votes), he would move to have the filibusters declared out of order for federal judicial nominees (a move that Democrats have labeled the "nuclear option”).

Bill Frist had the votes. He knew he would lose five senators, and that would mean a 50-50 tie broken by the president of the Senate, Vice President Dick Cheney.

Then, like an unexpected hailstorm on a hot summer day, a minority of seven Republicans and seven Democrats flattened the hopes of a majority of Americans hoping for up-or-down votes on nominees, with the announcement of a back-room “deal” they claimed would “avert a crisis in the U.S. Senate.”

As details of the agreement emerged, shock and dismay spread among those who saw it as a treacherous action hatched by a self-interested minority. Dr. James Dobson of Focus on the Family called the deal a “complete betrayal.” Another called it “a travesty for Republicans, for the nation, and for the majority of voters.” Charles Krauthammer called it “the flinch heard ‘round the world.”

The “Magnificent Seven”

The five losses that Frist anticipated were not unexpected: Olympia Snowe and Susan Collins from Maine and Lincoln Chaffee from Rhode Island, all very liberal Republicans. No surprise.

Then there is John McCain, who has previously turned his back on his party and basked in the ensuing publicity, and John Warner, who also decided (for whatever reasons) to go against his party.

“Had it been just those five, the judicial filibuster—the bastard child of Democratic bitterness over recent lost elections—would now be banished,” said Charles Krauthammer.

But along came Michael DeWine and Lindsey Graham, who had been prepared to vote for the nuclear option but decided at the eleventh hour to cross the aisle. Both DeWine and Graham say now that if the Democrats start to filibuster again, they will defect back to their own party and “go nuclear.”

Don’t count on it. Their newfound celebrity status might prove too much to disavow—just for the sake of doing the right thing.

Who Won—and Who Lost?

Democrats agreed to allow final confirmation votes for Priscilla Owen, Janice Rogers Brown and William Pryor—appeals court nominees they have consistently blocked. However, there was no guarantee the three would be confirmed, and no commitment to vote either for or against a filibuster in the case of two other conservative appellate court nominees, Henry Saad and William Myers.

Further, judicial nominees in the future should only be filibustered (according to the deal) under “extraordinary circumstances,” with each senator (presumably the Democrats) having discretion to decide when those conditions have been met.

The “magnificent seven” Republicans also promised to oppose any attempt o make changes in the application of filibuster rules.

Net: Nothing of significance has changed. Only three of President Bush's nominees will be given the courtesy of an up-or-down vote, and it's business as usual for all the rest, with the Democrats’ unconstitutional “super majority” rule to block conservative nominees still in effect.

Whose Idea Was It?

The biggest winner (for the moment) is Senator “Rule or Ruin” John McCain, who has once again sold out his party to the applause of the mainstream media. This “deal” gives him a lot of publicity, plus the satisfaction of pulling the rug out from under Bill Frist, who until now appeared to be his chief rival for the Republican presidential nomination in 2008. Had Frist won a showdown with the Democrats by employing the so-called “nuclear option,” he would have gained not only the name recognition that McCain already has, but would no doubt have gained support with the Republican base—which McCain does not have. McCain must have calculated that if Hillary Clinton were the Democrats’ candidate in 2008, he could win without it, since Republican voters would have little choice—either him or Hillary.