Of course then I’ll complain when I violated that time limit. After all, isn’t it a natural right to fix your comments no matter how long ago you screwed them up. But I’m open to compromise here.

Maybe the time limit is important to prevent someone significantly changing the substance after others have commented. I think this could be handled by an engine that simply keeps links to older versions of comments so if some intellectual sleight of hand is under way, that can be called out, rather than dooming the rest of us to be forever embarrassed by our typos and the beautiful rhetorical turns we forgot to put in before we clicked post.

see his comment about the length of THIS post on the Reinhardt thread

Man, you make a guy work for his snide comments, there is no THIS [it is] THERE

I would say statistics as well as an earlier commentor with whome I agree suggest that the length of attention Jon pays to his posts is well abouve the statistical norm as well. I for too appreciate that his posts are not hit and run. From the polite concessions of some commentors, I think there are actually more than two of us who appreicate this. Another thread that distinguishes Volokhdom for disagreements that aren’t disagreeable [to read].

and Brian K.,

I had counted that senate democrats blocked 10 out of the 218 nominations during bush’s first term. (7 were renominated and was appointed via a recess appointment within the next year.)

In contrast, senate republicans blocked 45 out of the 70 nominations during clinton’s final year in office.

while I think I am prone to Jon’s arguments on the extent of obstructionism, I think your attention to pots calling kettles black is useful but the metrics don’t match well. The current crop of comparisons however, rightly looks at the first 10 months of the Bush and Obama presidency. I don’t have the numbers so I don’t want to speak presumptively, but my impression is that a somewhat equal percentage of Bush nominations were unavailing in his final year in office.

You may have done the research at a time when you only had Bush’s first term to work with, so I’m not saying it was deliberately oranges and apples, but I do think we should get our judicial fruit straight here and someone probably knows the numbers for Bush’s final year.

Can you expound on your methodology. Was this nominations made in the final year, considered, or nominations outstanding during the final year of the Clinton presidency.

Thanks,

your namesake (when not on Volokh)

Brian

I had counted that senate democrats blocked 10 out of the 218 nominations during bush’s first term. (7 were renominated and was appointed via a recess appointment within the next year.)

In contrast, senate republicans blocked 45 out of the 70 nominations during clinton’s final year in office.

granted, this takes into account all methods by which one party prevents an up or down vote on a nominee, not just filibusters. however, this displays the incredible amount of disingenuity present in these debates. why the focus on only filibusters? because it is the only metric in which republicans come out ahead. the only thing that is unprecedented is the rate at which senate democrats didn’t block bush’s nominees.

I thought you could take a joke (there was a smiley on that comment about statistical analysis.) Guess I was wrong about you having a sense of humor. That’s a mistake I won’t make again.

I suspected that only SirCastro and other members of the left were permitted to use sarcasm, and it appears I was correct.

And blind pigs? What the hell is that all about?

My comment WAS a joke (obviously not a good one). The reference to blind pigs involves an old saying: “Even a blind pig sometimes finds an acorn.” Meaning my comment about the length of Prof. Adler’s post was lucky.

I did get that you were not serious in your comments and was trying to respond in kind.

Seriously Welker, try and read more carefully. As dcp notes below, I’m “not giving Senate Republicans credit for not filibustering nominees” but “merely pointing out that it is absurd for another writer to call their confirmation efforts obstructionist on a new and unprecedented level, when recent history shows that such accusations are complete and utter nonsense.” Insofar as Republicans are using blue slips or other obstructionist tactics, they are wrong to do so. I also believe that, so long as those Republicans who oppose the Hamilton nomination have an opportunity to explain their views on the floor, the entire Republican caucus should vote in favor of cloture. — JHA

Fine fine. I take back the point that you were giving Republicans credit. And I agree with you. I should have interpreted you more sympathetically. I think whether one calls something unprecedented or not depends on how you look at things. If you are talking about general level of obstruction, I agree with you. There is nothing as obstructionist as filibustering. But, if you are talking about unprecedented use of tools other than the filibuster, then it is conceptually sensible and not absurd to say that those tools are being used in an unprecedented manner.

A final note. I don’t have problem with obstructionism or any other tactics that are within the rules. So, I think Republicans are within their rights to engage in whatever obstruction they wish, although it is perfectly reasonable for voters to punish them for it as well. The issue is that the rules need to be changed.

Mark Field: Just to preempt geokstr, I’ll mumble something about blind pigs and acorns. Oh, and that elaborate statistical analysis. Yeah, that too.

I thought you could take a joke (there was a smiley on that comment about statistical analysis.) Guess I was wrong about you having a sense of humor. That’s a mistake I won’t make again.

I suspected that only SirCastro and other members of the left were permitted to use sarcasm, and it appears I was correct.

And blind pigs? What the hell is that all about?

Trashing the constitution is hard work, and lots of effort and resources has to be put into that first. This crisis, which took decades for the left to foment, is too good to waste but no telling how long the window will be open.

It will take a long time for the court challenges to these constitutional work-arounds and makeovers to wend their way up through the Judiciary food chain, particularly since the Justice Department is in sympathetic hands. There will be plenty of time to put the rubber stamps in place after the heavy reconstruction work is done on the constitution first.

Heck, there may even be time to get something that looks and stinks a lot like ACORN but is named something different heavily involved in the election and census processes so that the results in 2010 and 2012 will provide them with more consequences that they will find useful to the task at hand.

Hey, they won, remember?

Totally unrelated, Mark Field was 100% accurate about the length of this post (see his comment about the length of THIS post on the Reinhardt thread). Way to go, Mark!

Just to preempt geokstr, I’ll mumble something about blind pigs and acorns. Oh, and that elaborate statistical analysis. Yeah, that too.

Totally unrelated, Mark Field was 100% accurate about the length of this post (see his comment about the length of THIS post on the Reinhardt thread). Way to go, Mark!

I don’t think the filibusters of any of Bush’s nominees, with the possible exception of the Michigan nominees, were due to a failure to honor blue slips or holds.

Thanks.

Why filibusters are (were) bad because they were “unprecedented” is not obvious. Procedural rules are procedural rules, and using one rule instead of another hardly seems like some sort of offense against common decency.

And the business about majority support is meaningless. After all, if a nominee doesn’t enjoy majority support all you have to do is let it come to a vote.

[RESPONSE: It's an interesting post. My initial reaction: President Obama should be entitled to nominate qualified judges that conform with his preferred judicial philosophy, and he should see his nominees confirmed. This is how I believe principled conservatives should respond to a Democratic President. Further, I don't think the consideration of judicial philosophy in making nominations necessarily entails "rigid ideological screening." Any process that yields appellate judges like Posner, Easterbrook, Kozinski, and Sentelle is anything but "rigid." JHA]

I’m not much impressed by the distinction you’re making regarding the Fortas case. That filibuster was one by conservatives of both parties against a liberal justice. Whether he had majority support on an up or down vote will never be known because he was never given one. Voting not to close debate isn’t the same thing.

[RESPONSE: I don't think the filibusters of any of Bush's nominees, with the possible exception of the Michigan nominees, were due to a failure to honor blue slips or holds. Also, there are two other distinctions with Fortas: He didn't have majority support, so would have lost the straight up-or-down vote, and there were non-ideological bases for opposing him (ethical concerns that ultimately prompted his resignation). JHA]

During the Bush Administration, Senate Democrats adopted the unprecedented tactic of filibustering appellate judicial nominations

You qualified this very carefully to make sure it was accurate, but I fail to see any distinction between filibustering a SCOTUS nominee and filibustering an appellate court nominee. The “novelty” of the tactic isn’t all that apparent, nor is the “blame” for engaging in it.

Correct me if I’m wrong, but weren’t the Dems forced to use the filibuster because the Repubs wouldn’t honor holds? If that’s correct, it seems that Harry Reid is much more respectful of Senate tradition than the post would suggest. That said, I agree with those who prefer a filibuster to a “hold”, as the former is more public.

Perhaps the best way to solve the problem is transfer the advise and consent role to the House.

[RESPONSE: I've addressed these points before. Prior to 2001, there had never been a filibuster of a judicial nominee, for any court, who enjoyed majority support. The only one was for Associate Justice Abe Fortas' elevation to Chief Justice, a nomination I discussed here. As for the second claim, consider yourself corrected. Among those filibustered were Priscilla Owen for the U.S. Court of Appeals for the Fifth Circuit and Miguel Estrada for the U.S. Court of Appeals for the D.C. Circuit. Both Texas Senators supported Owen's confirmation, so both of her blue slips were returned with favorable recommendations. As for Estrada, there are no "home state" Senators for the D.C. Circuit, so the blue slip policy is completely inapplicable. -- JHA]

Google suggests that gossip suggests that Nelson and/or Specter (???) are blocking Dawn Johnsen. But a similar search for Schroeder brings nothing.

There’s something dissatisfying about the secret prerogatives of individual senators. Has a very pre-17th Amendment flavor to it.

Steve: Nice to know that you don’t actually believe that pathetic drivel.

Of course not, it’s called satire.

I fully support the right of the majority party in the Senate to set the rules for the method of approving nominees from the executive.

I also fully support the minority party politicizing the issue, or refusing to change the rules back when the tables are turned.

However, rhetorically speaking, the Democrats shouldn’t complain too much about Republicans stalling Obama’s nominees (those few that have been presented). The Democrats took some unprecedented moves when they were the minority party to stall Bush’s nominees.

Republicans used other methods to delay nominations, Sen. Helms infamous for repeatedly holding up Fourth Circuit judges. In practical effect, there is nothing “unprecedented” about Democrats filibustering (even there, I read that Breyer was filibustered for a time when he was up for a lower court position).

Brett is on point here. And, to be honest, I find it a bit dishonest to frame it as if the Dems are doing something so unique. The minority, sometimes single senators, have always in some fashion had the power to block, including judicial nominees in some fashion. Senatorial courtesy respected the will of single state senators, for example.

Let’s be honest here, okay? Both sides used such tactics. We debate the split but let’s be fair here. As to the delay, lots of stuff is going on. What big things did Bush have to worry about until September akin to the economy, two major overseas conflicts and a Supreme Court nomination?

Nice to know that you don’t actually believe that pathetic drivel.

Steve: Just a few short years ago, Republican partisans informed us that filibustering judicial nominees was utterly unprecedented, contrary to the deepest traditions of the Senate, and quite possibly unconstitutional. Now that same filibuster is apparently God’s gift to our democracy. You really have to sit back and laugh.

Sorry, actually I was quoting/paraphrasing from this.

So remember, just a few short years ago, Democrats told us that the filibuster for judicial nominees was historically sound, in light with the deepest traditions of the Senate, and exactly what the framers intended. Now, that same filibuster is apparently the work of the Devil.

You really have to sit back and laugh.

No, here’s the comment above yours (emphasis added):

The right to filibuster is consistent with the solemn constitutional duty that every U.S. Senator has along with the right to advise and consent on presidential nominees. [...] No matter which party controls the Congress or the White House, no president or the majority leadership in Congress should be given the right to upset the checks and balances that are crucial to our Democracy. [...] it is not unreasonable for rthe minority in the Senate –whether Democratic or Republican – to preserve their freedom and right to open debate on any judicial nominee that the president submits.

I don’t see any claim that the Democratic use of the fillibuster was inappropriate in that comment, do you?

Prof. Kerr had the subject of filibusters and judicial confirmations pretty well covered about a year ago.

Just a few short years ago, Republican partisans informed us that filibustering judicial nominees was utterly unprecedented, contrary to the deepest traditions of the Senate, and quite possibly unconstitutional. Now that same filibuster is apparently God’s gift to our democracy. You really have to sit back and laugh.

I’m just waiting for Reid to come out and say that delaying tactics are illegitimate. That would complete the story.

Can YOU read? The relevant quotes are in the comment directly above mine.

Both parties use the procedural methods available to them to block nominees they don’t like. This includes filibusters (having exactly 60 votes, counting Lieberman hardly makes for a filibuster-proof majority), blue slip rules (which, however “traditional,” have been changed regularly, especially by Hatch), and “holds,” (which I think Reid is a fool for honoring).

Just dumping it all and requiring a 60-vote majority to confirm, operating on a reasonable schedule after the nomination, would be a vast improvement.

All this procedure is nothing but a way for Senators to generate phony talking points about what they are doing.

[RESPONSE: I think the history that I've recounted at length in some of the posts above strongly support the claim that there has been what Larry Solum has termed a "downward spiral" of increased obstructionism from the mid-1980s through the Bush Administration and that Republicans -- even if only because they lack the votes -- have yet to escalate in retaliating against President Obama's nominees. -- JHA]

Can you read? I’ll copy the relevant quotes so you don’t sprain your finger scrolling up

During the Bush Administration, Senate Democrats adopted the unprecedented tactic of filibustering appellate judicial nominations, including several individuals who were extremely well qualified. (See also here.) While Senate Republicans have hardly greased the skids for Obama’s nominees, they have yet to do anything comparable.

or

Like those who preceded them, Senate Republicans cling to the Senate’s blue slip tradition and seek extensive time to debate some of Obama’s nominees, yet there will be no filibuster (even if only because Republicans don’t have sufficient party discipline or the votes) — and that’s a good thing.

David Welker: But you know, I don’t really blame Republicans as much as I blame Democrats. They should simply change the Senate rules that allow the Republicans to engage in obstruction, starting with the filibuster.

The right to filibuster is consistent with the solemn constitutional duty that every U.S. Senator has along with the right to advise and consent on presidential nominees. It is also a long established Senate tradition that has helped ensure that the most qualified nominees sit on the Federal Bench. No matter which party controls the Congress or the White House, no president or the majority leadership in Congress should be given the right to upset the checks and balances that are crucial to our Democracy.

Federal judges are appointed for life terms and their rulings shapeour daily lives. Accordingly, it is not unreasonable for rthe minority in the Senate –whether Democratic or Republican – to preserve their freedom and right to open debate on any judicial nominee that the president submits. It is all the more imortant today, because of the likelihood of one or more anticipated vcancies on the U.S.

The Congress and President are suffering from unbounded arrogance of power. They are so arrogant that they want to fundamentally change the rules of the Senate so that a single political party in power holds total and absolute control of all three branches of government.

To that end, the President and the majority party want to end the Senate’s right to filibuster in order to pack the federal courts with the extreme fringe, putting at risk the rights and liberties our nation has fought for and protected for centuries. Their ultimate motive is to create a Supreme Court that will not act as an independent branch, but instead wag its tail at the Congressional leadership’s every beck and call.

When the Founding Fathers established the Senate, they did so to protect the rights of the minority. At the time, it was to protect the rights of the smaller states against the will of the larger states by granting two Senators to each state regardless of size. For the past two hundred years, those protections have served this country well and is the reason that the rights of the minority party need to be protected today by preserving the filibuster.

The role of the Senate in the confirmation of presidential nominees is a central element of our democracy. The confirmation process underscores our founding fathers’ commitment to the separation of powers and their abhorrence of simple majority rule. It provides for essential checks and balances to ensure that we remain a nation ruled by laws and not by men.

Instead of tending to our nation’s business – its burgeoning deficits, sky high unemployment, and a billion dollar a day bailout – the majority party is on a quest for absolute power. They are on a mission to trash our founding fathers’ commitment to the separation of powers and abhorrence of simple majority rule. The majority party’s power grab is all the more egregious at a time when we preach democracy around the world but seek to subvert it here at home.

The American people don’t want, nor do they need, another king. That’s why we fought a war of freedom over 200 years ago.

I think it is conceptually sensibly to say that their use of the procedures that are actual options available to them is unprecedented.

But you know, I don’t really blame Republicans as much as I blame Democrats. They should simply change the Senate rules that allow the Republicans to engage in obstruction, starting with the filibuster.