Thus, in the end, the Gang of 14’s compromise paved the way for the confirmation of some of the finest conservative judges in recent history: John Roberts, Samuel Alito, Janice Rogers Brown, William Pryor, and others.
This is the conclusion of a Weekly Standard article by Adam White and Kevin White, titled “Misjudging McCain,” which is an extended defense of the Gang of 14’s mutiny against the Senate Republican Caucus and the Administration in the spring of 2005. Try as the authors might to rewrite history, the essential fact is that judicial filibusters are extra-constitutional, and the Republicans ran on such a platform in the 2004 Senate elections and scored huge wins and secured a 55 seat majority in part because of a reaction against the Democrats refusal to accord up-or-down votes to nominees who emerged from the Judiciary Committee. Thousands and thousands of Republican activists who care about originalist judges had contributed to and worked for candidates like John Thune, Richard Burr, Johnny Isakson, Mel Martinez and David Vitter who all took over Democratic seats, and had engineered the majority that included at least 50 votes to support a ruling from the chair (Vice President Cheney) that filibusters of judicial nominees were out of order under the rules of the Senate.
Then John McCain organized a back-room deal with six other Republicans to undermine the Bush-Frist strategy of returning the Senate to its old rules. The fig leaf was the confirmation of Judges Brown Owens, and Pryor and a promise not to filibuster judicial nominees through the end of the session absent extraordinary circumstances, which were undefined. Other fine judges were thrown under the bus. And the extra-Constitutional schism with hundreds of years of practice was not repaired.
The damage to the GOP was instant and immense. Not only were fine judges sacrificed to John McCain’s ego, many in the base simply tuned out the GOP from that moment forward. Why work that hard and invest that much in a party that cannot deliver on its pledges even when gifted with 55 seats? Why fight for a majority that would not fight? Ohio’s Mike DeWine, an otherwise reliable conservative, never recovered with the Buckeye State’s GOP base and lost his seat in 2006. Rhode Island’s Lincoln Chafee was also turned out, though the party’s bill of grievances against Chafee was much longer than just the Gang of 14.
There were other stumbles along the way to the loss of six seats in the fall of 2006, but the McCain Gang’s coup in the Spring of 2005 started the slide. And for what? White and White argue that we should be grateful for the successful confirmations of Chief Justice Roberts and Justice Alito and Judges Brown, Pryor and Owens.
But those fine jurists all would have been confirmed had the filibuster been ended anyway, and many more besides.
It is simply silly to argue that the McCain deal got the GOP anything it wouldn’t have gotten anyway. Had the Democrats attempted to filibuster Roberts or Alito it would have been broken and along the way the Dems would have been revealed as scurrilous. (Some Dems like John Kerry wanted a filibuster but the party’s wiser heads prevailed knowing the end result.) If Harry Reid had tried to tie up the Senate in a time of war as he threatened, again the ensuing confrontation would have been very useful light on the Dems tactics and agenda.
In short, had the Senate GOP been willing to use its majority, it would still have its majority. By demonstrating its essential impotence to battle for the right goals and the right powers, the Senate GOP majority lost an enormous amount of credibility, and they never regained it. The patient and careful rebuilding undertaken by Senator McConnell and his team is restoring the credibility of the GOP, and that project depends on the GOP being willing to fight for what it believes in, and that begins with judges committed to the Constitution.
Thanks to John McCain, the GOP lost the chance to confront the Democrats over their hyper-partisan destruction of precedent. They lost many fine nominees as well. And the confirmation machinery didn’t even improve for the rest of the session. Numerous judges were left dangling at the end of 2006 when the Gang of 14 “deal” expired, and most of them like Peter Keisler, nominated to the second most important court in the country, the D.C. Circuit, are hostage still to the Democrats.
The Gang of 14 got the GOP nothing. It cost the party much. It cost many fine people their seats on the bench and a lot of their dignity.
And the seven senators led by John McCain betrayed promises made by the GOP as a whole, and undermined the widespread originalist understanding of the Constitution in the bargain.
I am glad White and White have chosen this moment to remind Republicans across the country about John McCain’s Gang of 14. There’s a reason why Senator McCain never brings it up when asked to discuss his qualifications for the presidency. It is on the list with the votes against the Bush tax cuts, the McCain-Kennedy immigration “reform,” McCain-Feingold, ANWR and many other things.
The Gang of 14 is short hand for why John McCain should not be the nominee of the GOP.