I would think that Frist making it clear that he will ignore the filibuster agreement would be case closed. Obviously, the Democrats really gain nothing. Some of the worst justices will be confirmed, a few Confederate judges will be replaced by a few other Confederate judges. And as Dan Skinner notes, once you’ve set the precedent that Owen and Rogers do not constitute “extraordinary circumstances,” you’ve given away the store, especially on Supreme Court appointments. Given that Owen and Rogers are more reactionary, and not nearly as smart, as Scalia and Thomas, the constraints this puts on Bush are basically nil. And even if the Dems try to filibuster anyway, this deal depends on the good faith of a significant number of Republican moderates. If you think that means anything–well, let me lay this out for you: 8 units, Mountainview. Ezra and the Mock Turtle, however, are mollified by Dick Durbin’s claim (which I don’t doubt) that the Democrats didn’t have the votes to stop the nuclear option. And this is the one plausible defense of the deal: if you think the filibuster as a whole was worth saving, then this was the second-best option.
The problem is that this position, from a progressive standpoint, is dead wrong. Given that this deal will have a negligible effect on the content of judicial appointments, the nuclear option would have been a much better outcome for Democrats in the long run. What conservatives who are just as reactionary but not as stupid and short-sighted as the likes of Frist and Dobson understand is that once you’ve set the precedent that Senate rules can be changed with a simple majority, the filibuster is doomed as soon as the Democrats regain power in the Senate. And, of course, the filibuster is on balance an inherently conservative rule, one that clearly serves the long-run interests of the Republican Party. Getting a decent health care system, or any other significant progressive reform, will be virtually impossible as long as the filibuster remains in place. In other words, from the standpoint of Republicans not having to use the nuclear option is a feature, not a bug. They get basically everything they want in the short-term, without sacrificing anything in the long-term. This deal was an utter rout. And although its undemocratic aspects help the Democrats in the short-term, progressives really have to stop romanticizing the Senate, and instutition that has been the graveyard of progressive change and tool of the worst elements of American politics for two centuries.