When Trent Lott coined the phrase "nuclear option" to describe the suspension of Senate rules to push through every last extreme and unqualified Bush judicial nominee, he no doubt intended to issue a threat to Democrats: Roll over, or we will bury you. But, in our Cold War psyche, the "nuclear" narrative has only two courses -- détente and mutual assured destruction. By this standard, the collective of 14 Senators who reached a compromise on Monday averted the latter and achieved the former.

In a sense, though, not much has changed. The deal tries to legitimize both sides. The senators recognized the filibuster as a legitimate procedure, while at the same time leaving the door open for the nuclear option in the future (as signatories Lindsey Graham and Mike DeWine insist) -- an option predicated on the illegitimacy of the filibuster. Similarly, the Democrats are presumed to have gone too far in blocking 5% of Bush's nominees, while Republicans are presumed to be over the line in their demands for an "up-or-down vote" for all nominees.

These contradictory points defy a straightforward reading, which is why everybody is scrambling to position themselves for the next round. What will happen when -- not if, when -- Bush nominates an over-the-top wingnut to the Supreme Court later this year, when Rehnquist retires? Will Democrats successfully block the nominee under the "extraordinary circumstances" clause, while complaining that the president failed to seek their "advice"? Or will Republicans repeat the play-acting of the last few months and accuse Democrats of "unprecedented abuse" of the process?

Nobody knows. Those who wish to continue the nuclear threat, like most of the conservative commentariat, have to keep insisting on their old myths in order for it to work.

MYTH: Dems were abusing filibuster

[Written prior to compromise.] Sen. Edward M. Kennedy, the Senate's 73-year-old liberal lion, has orchestrated a solid Democratic front that has succeeded beyond all expectations. It has kept 16 Bush nominees off the appellate bench, some permanently. But Kennedy went too far. Had he blocked two or three judges, the reaction would have been modest. (Robert Novak, "The Senate's sham debate," Town Hall, 5/23/05)

The Framers would not have applauded a filibuster device applied to judicial nominations that invites the Senate to globally impede, rather than carefully and selectively check by, as Hamilton wrote, "general, silent operation." (Douglas Kmiec, "Forfeiting principle," National Review, 5/25/05)

The fact that the Democrats finally agreed to give Owen, Janice Rogers Brown and Bill Pryor an up-or-down vote, knowing that she and they will be confirmed, exposes the Democrats' vicious and deceitful attacks on these nominees as a total sham. (Jan LaRue of Concerned Women for America, press release, 5/25/05)

REALITY

As we've noted many times, filibustering judicial nominees is not unprecedented. Nor are today's filibusters systematic or "global" -- just ten out of Bush's 218 nominees to the federal bench have been filibuster, a healthy 95% party-line approval rate.

By contrast, seventy of Bill Clinton's nominees spent the 1990s trapped in committee under shadow filibusters of blue slips, Rule IVs, and the caprice of the Judiciary chair. (Those pre-filibuster holds were eliminated by Orrin Hatch in 2003, leaving only the filibuster on final confirmation.)

MYTH: Filibuster unconstitutional

Almost any nominee for the Supreme Court who is serious about observing the original understanding of the Constitution and a restrained judicial role can be expected to be caricatured as "out of the mainstream" and trigger the Democrat's "extraordinary circumstance" pretext to filibuster anew.... The compromise does nothing to address the wrongful refusal of the Senate to perform its proper "advice and consent" function. Worse, it purports to forfeit freely authority reserved by the Constitution to the president — namely, his carefully articulated power of nomination. (Douglas Kmiec, "Forfeiting principle," National Review, 5/25/05)

The agreement does not guarantee up-or-down votes on all of President Bush’s judicial nominees, nor does it restore the Senate’s unswerving 214-year tradition of majority vote for all judicial nominees. In addition, the agreement attempts to rewrite Article II of the Constitution, by giving the Senate an advise-and-consent role in the nomination, as well as the appointment, of judges. (Sen. John Cornyn, "An admission of guilt," National Review, 5/23/05)

Democrats seem to think they are entitled, as a minority party, to have their own judges appointed in proportion to the popular vote percentage their losing candidate (John Kerry) received in the election. (David Limbaugh, "Compromise or cop-out?" Washington Times, 5/26/05)

The deal, moreover, says, “Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith.” Well, their responsibility under the “Consent” part of the Clause is to confirm or reject the president’s nominees. Period. (Andrew McCarthy, "The deal's no victory," National Review, 5/24/05)

REALITY

The Constitution, in Article II, Section 2, describes the responsibility of the president to nominate judges: "[The president] shall nominate, and by and with the advice and consent of the Senate, shall appoint ..." federal judges and other officers. Interestingly, there is no corresponding section in Article I, on the legislature, except possibly Section 5, which states that "[e]ach House may determine the rules of its proceedings."

Clearly, under the Constitution, it is the president who is required to seek the advice and consent of the Senate -- the Senate is not required to give it. By the Senate's own duly-determined rules, as has been demonstrated many times (see previous item), a nominee can be blocked without ever receiving an "up-or-down vote."

There's certainly a valid case to be made in eliminating the filibuster -- it feels somewhat archaic and undemocratic, and it has generally been the tool of conservatives. But those are the rules. The rules can be changed, as they have in the past (changing the rule on cloture requires a 2/3 majority, which Republicans do not have) -- but that is not what the nuclear option is about.

Instead, what Frist and his supporters sought (and still seek) to do was to issue an edict, without changing the rules, that the rules no longer apply. The notion of constitutionality does not enter into rule by fiat.

MYTH: Republicans win: New precedent

The other side’s position, by contrast, is an intellectual shambles. The agreement guarantees up-or-down votes to Justice Priscilla Owen, Justice Janice Rogers Brown, and Judge William Pryor — three well-qualified nominees who were once deplored as extreme and dangerous (as late as yesterday afternoon). The agreement is thus an effective admission of guilt — an admission that these fine nominees should never have been filibustered in the first place. Moreover, by forbidding future filibusters of judicial nominations except under “extraordinary circumstances,” the agreement establishes a new benchmark for future conduct in the United States Senate — namely, that other qualified judges who are firmly committed to the law, like Owen, Brown, and Pryor, deserve an up-or-down vote, too. [...]

[B]y forbidding future filibusters of judicial nominations except under “extraordinary circumstances,” the agreement establishes an important new benchmark for future conduct in the United States Senate. The agreement announced last night acknowledges that Owen, Brown, and Pryor should never have been filibustered in the first place, and moreover, that the Senate must not filibuster similarly qualified nominees in the future. Sen. John Cornyn, "An admission of guilt," National Review, 5/23/05)

REALITY

While the filibuster is reserved for the future under "extraordinary circumstances," leaving those circumstances undefined, the compromise ends debate on three judges, Priscilla Owen, William Pryor, and Janice Rogers Brown. It is difficult to imagine any judge more unacceptable than one of these three, and so our fear -- expressed by Senate observer Mark Schmitt (later retracted) -- is that these characters will set a new precedent for who is acceptable. Not only have the seven Democrats "admitted guilt," as Senator Cornyn's title puts it, they have rolled out the red carpet for a Janice Rogers Brown on the Supreme Court.

But that level of optimism can't really be found outside members of the Senate. There is no doubt that Republicans will make that argument when the time comes, but who will listen? Despite our best efforts at exposing these nominees as extremists, media coverage of the debate centered on the Republicans' argument that the filibuster constituted some kind of abuse. Can anybody really say who is more extreme, Brown or William Myers, an unqualified industry shill who will be blocked under the deal?

The next step in this protracted coup on the courts will concentrate on what makes a future blocked nominee so "extraordinarily" bad for our nation, rather than on some arcane procedural gimmick. And that is a debate we welcome.

MYTH: Democrats win: Filibuster unrepudiated

Let’s say, instead, that they simply gave us the bottom line: (a) three of the president’s nominees get an up-or-down vote (i.e., exactly three of the pending seven left standing after the Democrats — in that spirit of compromise — whittled down from the original ten); (b) the Democrats remain free to filibuster (but only on the strict condition that, uh, well, that the Democrats feel like filibustering); and (c) the Republicans, on the brink of breaking four years of obstruction, decide instead to punt (and on the eve of a likely battle over a Supreme Court vacancy, no less).

Sound familiar? Yes it does: It’s the deal that Senate Minority Leader Harry Reid offered a week ago — and that was flatly rejected as paltry and unprincipled. (Andrew McCarthy, "The deal's no victory," National Review, 5/24/05)

This concession, if such it can be called, should have been superfluous: To filibuster a judge is an extraordinary act. (Editors, "Dealing with the deal," National Review, 5/24/05)

REALITY

Given the sour pill of three incredibly bad judges now in line for swift confirmation -- one already confirmed -- the preservation of the ability to block the most extreme nominees is certainly a relief.

But while the nuclear option was sidestepped for now, it is clear that some of the seven Republicans who signed the deal would have voted for the option. At best, they thought it distasteful. Lindsey Graham and Mike DeWine, along with John Warner, emphasized they would fall in line with their party the next time, and Majority Leader Frist also reiterated that "[t]he constitutional option remains on the table... I will not hesitate to use it if necessary."

In fact, while it was never clear Frist had the votes in the first place, it is certainly possible that Graham and DeWine -- two young, die-hard conservatives -- acted to set up a safety zone for hesistant Republicans come round two.

The reality is that the deal is held together by a thread, with both Frist and Reid declaring victory and vindication of their respective sides. The mini-caucus of 14 will not hold once Bush nominates a rabid ideologue to the high court. By then, the nation's memory of this farce of a standoff might look very different than it does to us today.

Conservatives will maintain their insistence in (1) the supposed injustice of the filibuster and (2) a supposed crisis in the courts in order to shape the next round of debate. It's our job to maintain the truth until then.