In the two weeks since the Senate “Gang of 14” agreed to a deal that avoided the nuclear option (that's a .pdf file), a lot of ink has been spilled about the part that says that future judicial nominees should be filibustered only in “extraordinary circumstances.” Some conservatives have argued that this means Senators can’t block nominees on the basis of their judicial philosophy, or that the fact that the deal allows floor votes on three nominees (Priscilla Owen, Janice Rogers Brown, and William Pryor) means they and other nominees with similar records are by definition not “extraordinary circumstances.”
These arguments miss the boat. After all, the deal itself explicitly says that “extraordinary circumstances” are in the eye of the beholder:
Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.
However, we are not inclined to avoid a good debate, so here are our observations about the meaning of “extraordinary circumstances”:
First, a nominee’s judicial philosophy is clearly relevant. When President Bush says he is looking for nominees like Clarence Thomas and Antonin Scalia, he is not talking about their fashion sense or their winning smiles—he is talking about their judicial philosophies. Since Presidents choose nominees on this basis, the Senate must evaluate them on this basis too. As NominationWatch Executive Editor Marcia Greenberger explained in this Congressional testimony (.pdf), both sides of the nomination debate have long agreed on this. Additionally, the deal allows filibusters on two pending nominees—William Myers and Henry Saad—to continue, suggesting that these nominees do constitute “extraordinary circumstances.” The opposition to Myers, for example, is certainly based on his extreme judicial philosophy.
Second, filibusters on Owen, Pryor, and Brown were ended as a trade-off for taking the nuclear option off the table—not because their nominations were not “extraordinary.” Ending the filibusters on these three extreme nominees as part of the deal does not set any precedent for the meaning of “extraordinary circumstances.”
And third, there has not been a Supreme Court vacancy in 11 years, and the Court is closely divided on extremely important issues that affect the daily lives of many Americans (.pdf). It does not take a dictionary or an expert to tell you that any out-of-the-mainstream Supreme Court nominee who would roll back well-established rights and legal principles would be an “extraordinary circumstance.”
