Now follow this: four of the nominees (Haynes, Saad and two others) (a) had been filibustered before the deal and (b) were not given an up-or-down vote by the deal. Ergo, the deal kept those filibusters going. It did so, moreover, without anything approaching extraordinary circumstances — even as Sen. McCain and his accomplices claimed there would be no further filibustering absent such circumstances. And, as the Whites further confusingly acknowledge, the nominations of Haynes and Saad were “effectively kill[ed]”; that is, though the Whites say the Gang of 14 agreed those nominees’ “fates would not be decided by the agreement,” their fates were precisely decided by the agreement. Further, to the extent there might have been some wiggle room around the agreement, Haynes is to this day being blocked by McCain. So, though the deal he spearheaded may represent “straight talk” to Sen. McCain, it’s unlikely the nominees — or many other people — would see it that way.

		Steyn: The Superbower Blase: A Medicaid Buy-Off Sanders: Blanche Lincoln’s Balancing Act Costa: Saturday Night Fever Miller: The Man Who Would Kill Lincoln Hibbs: Just Bite Her Already Goldberg: We Need Your Help Spruiell: Welcome to the Vast Right-Wing Conspiracy Editors: End It, Don’t Amend It Goldberg: Palinophobes Hate First, Ask Questions Later Murdock: Medicare: A Glimpse of the Future? Krauthammer: Travesty in New York Charen: Holder’s True Motive Lowry: Barack Obama’s Chump Diplomacy Spakovsky: Criminalizing Health-Care Freedom Anderson: Roadmap to Victory

It is pure post hoc ergo propter hoc for the Whites to contend that the Gang of 14 deal had anything to do with the confirmations of Chief Justice Roberts and Justice Alito. Supreme Court appointments are of a different dimension than nominations to the lower federal courts, even the Circuit Courts of Appeal. The public is far more engaged in them, and the political price of obstructionism is certain to be markedly higher.

As exhibited during their hearings, these two jurists were so patently qualified, it would have been suicidal for Democrats to try to block them by filibuster. They waved the flag for the base by asking nasty questions, raising inane objections, and casting futile votes against confirmation, but there was no way they were going to block a vote. The filibuster strategy, preserved by word and deed in the Gang of 14 deal, has been highly effective in thwarting qualified nominees, but it depends on public apathy. If it had been used it against Roberts and Alito, that would have called great attention to its use against Court of Appeals nominees, which might have cost Democrats dearly. That and the undeniable merit of the two justices involved, not the Gang of 14 deal, is why the high-court nominees were confirmed.

Finally, one other aspect of the Gang of 14 deal warrants attention. Reading the Appointments Clause, Sen. McCain and the other signatories declared: “We believe that, under Article II, Section 2, of the United States Constitution, the word ‘Advice’ speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations.”

Perhaps the senator actually believes that. After all, he is the same John McCain who, in 2000, said it would be important to consult with Senator John Kerry, among others, “to get foreign policy, national security issues back on track.” But if he does believe it, he is looking at a different Constitution. The structure of the Constitution, the plain language of the Appointments Clause, and Alexander Hamilton's discussion in The Federalist Papers of the Senate's contemplated advisory role all indicate that the prerogative to nominate belongs to the president alone. Article II, Section 2 does not speak to Senate consultation about nominations at all.

The Whites insist that “McCain is a proponent of ‘strict constructionist’ judges such as Antonin Scalia.” Maybe … but if the senator believes, as he has represented, that he is constitutionally bound to consult with today’s Senate Democrats before nominating judges, we won’t be seeing another like Justice Scalia during a McCain administration. At a minimum, the assertions in the Gang of 14 deal underscore the need to examine Senator McCain’s approach to the selection of judges — a matter that has gotten virtually no scrutiny in the ongoing campaign.

— Andrew C. McCarthy is an NRO contributor. The views expressed above are his own and do not necessarily reflect the views of any candidate or organization. Mark R. Levin served as chief of staff to Attorney General Edwin Meese in the Reagan administration, and he is a nationally syndicated radio talk show host.

Editor's note: This is a correction to the above article.

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