Today Richard Baehr (a McCain advocate) of the American Thinker offers a corrective to the oft-repeated criticism that the Gang of 14 somehow stabbed conservatism in the back. He writes:

"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" (essay in full here is worth reading).

For the most part, I agree. Back in the late spring of 2005, I wrote an op-ed piece for the local Waco paper regarding the so-called Gang of Fourteen and the then-controversial compromise over President Bush's judicial appointments.

From May 2005:

Last week, a bipartisan collection of fourteen moderates in the United States Senate caucused together to defuse an impending showdown over the ideological composition of the federal judiciary. Striking an eleventh-hour deal on the brink of political holy war, the self-selected centrists likely averted an injurious redefinition of established practice.

At the center of the controversy was the filibuster, a long-running Senate tradition designed to temper the will of the majority. The practice allows a minority of Senators to debate an issue indefinitely, preventing an “up or down” vote on a question on which they are certain to lose. Southerners in the antebellum era developed the filibuster to protect their “minority rights” in a nation increasingly uncomfortable with slavery. Conservatives from the South during the twentieth century seized upon the practice and repeatedly employed the filibuster to defeat civil rights legislation.

The most famous and perhaps most honorable use of the filibuster was actually a Hollywood creation. In Frank Capra’s Mr. Smith Goes to Washington, a courageous and scrupulous everyman spoke in the well of the Senate for almost twenty-four hours, and, in the end, triumphed over the corruption and institutional apathy he railed against.

The filibuster has always been controversial and a painful annoyance to the majority but, nevertheless, generally accepted as a helpful check to power. In this latest episode, the minority brandished the filibuster to deny appointments to ten of the President’s nominees to the circuit court. The majority party argued vehemently that “filibustering” judicial nominees was without precedent, which was not accurate. In 1968 the minority filibustered a Supreme Court nomination (Abe Fortas), and there are also some nineteenth century examples that may be precedents for the current use. However, the majority correctly asserted that the practice of regularly filibustering the President’s judicial nominees marked an extraordinary departure from Senate tradition.

In the strident battle that preceded last week’s dramatic cease-fire, both sides of the filibuster debate erroneously claimed the mantle of the Constitution and freely conflated cinematic legend and American history. Although the practice stands today as a legitimate piece of the procedural landscape in the Senate, the Constitution does not mention the filibuster. In fact, the minority tool came into use a full half-century after the founding.

The strained “constitutional” arguments, however, should not be dismissed completely. Many of them are, in fact, hypothetical extrapolations based on what we think we know about the intentions of the framers. For example, the founders designed the Senate to move cautiously, and they insulated the institution from unbridled majority rule. The filibuster springs from that tradition.

On the other hand, the Constitution provides specifically for super majorities on several separate occasions (one of which comes in the same sentence that contains the confirmation of “Judges” clause), but the document prescribes no such super majority for judicial nominations. Moreover, the Constitution gives authority to the Senate for “Advice and Consent” on judicial nominations in a section dedicated to establishing executive power (Article II; Section 2).

The principals involved in this current conflict admit that this episode is only a piece of a much bigger ideological battle. This impasse concerns the balance of power in the judicial branch and is a crucial prelude to the approaching confrontation over the next Supreme Court nominee. The issue animates the most devout and uncompromising elements from both ends of the American political spectrum, for the issues at the heart of the debate tread on their most sacred core convictions.

With the stakes so high, and the partisan rancor escalating, the majority threatened to change the rules and disallow the filibuster in the cases of judicial confirmations (the so-called nuclear option). The minority protested loudly and promised to retaliate in kind with procedural weapons that would bring the Senate to absolute gridlock. Negotiations failed and both sides prepared for a ferocious political clash.

Into this breach rode the defiant moderates. Their decision to step back from the brink and seek compromise guaranteed a vote on most of the President’s embattled nominees and accomplished great good on several other fronts. The agreement forestalled the further politicization of a process that is already too politically charged. Perhaps most importantly, the compromise seriously challenged the destructive precedent of filibustering judges and repudiated obstruction without rewriting Senate rules.

In addition to defending minority rights, the compromise promotes consultation and encourages consensus governance in the future. The episode made clear that the Executive must pay a price for spurning “Advice” and assuming “Consent.” The agreement also proves that Senators can cross the aisle and bridge the chasm of ideological animus. Choosing comity over war is a positive good in itself at this juncture in Senate history.

A very similar version of this essay appeared in the Waco Tribune-Herald on 3 June 2005.