"Extraordinary circumstances"

I have made no secret that I oppose any compromise of the filibuster question, most recently here. Mark Schmitt discusses the issue this morning and explains some of the possible scenarios. I'm not going to repeat them here, head over there and check it out. He does make an excellent point about any compromise that involves "extraordinary circumstances".

In theory, I don't have a problem with the "extraordinary circumstances" language. Because a filibuster will always involve extraordinary circumstances. It is not, as I never get tired of pointing out, a supermajority. And Democrats know full well that they lost the election, they can't just block every nominee until Bush agrees to appoint Cass Sunstein or Ron Dworkin to the Supreme Court. And they can't control all their votes even if they wanted to. So "extraordinary circumstances," in and of itself is just a matter of stating the obvious.

But if "extraordinary circumstances" is coupled in a deal with an agreement to let either Priscilla Owen or Janice Rogers Brown's nominations go through, then it is totally unacceptable. That's because in that combination, Brown or Owen would come to define the line of "extraordinary circumstances." That is, assume Brown goes through -- after that, anyone with views less extreme than Brown would implicitly be considered not extraordinary. Bush could name Brown herself to the Court and Democrats would be paralyzed. And the problem with that is simply that there are no possible nominees to the Supreme Court whose views are more radical than Justice Brown.

Bottom line, Priscilla Owen and Janice Rogers represent "extraordinary circumstances" so any compromise that allowed them to go through would be meaningless but would apply to future Supreme Court nominations. I rest my case.