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Shifting the Court:

If Judge Alito (a conservative) replaces Justice O'Connor (a moderate conservative), that probably would shift the court in some measure to the right. When Justice Ginsburg (a moderate liberal) replaced Justice White (a mixed bag, moderately liberal on some things, centrist on some, conservative on most culture war issues, including abortion, the Establishment Clause, and gay rights), that shifted the court in some measure to the left. But, according to David Boaz, writing in Reason:

In the past three months, the major media have repeatedly hammered away at the theme that Judge Samuel Alito Jr. would "shift the Supreme Court to the right" if he replaced retiring Justice Sandra Day O'Connor.

According to Lexis/Nexis, major newspapers have used the phrase "shift the court" 36 times in their Alito coverage. They have referred to the "balance of the court" 32 times and "the court's balance" another 15. "Shift to the right" accounted for another 18 mentions.

Major radio and television programs indexed by Lexis/Nexis have used those phrases 63 times. CNN told viewers that Alito would "tilt the balance of the court" twice on the day President Bush nominated him. NPR's first-day story on "Morning Edition" was headlined "Alito could move court dramatically to the right." ...

[But around the time of the Ginsburg appointment, n]ot a single major newspaper used the phrases "shift the court," "shift to the left," or "balance of the court" in the six weeks between Clinton's nomination and the Senate's ratification of Ginsburg. Only one story in the Cleveland Plain-Dealer mentioned the "court's balance," and that writer thought that Ginsburg would move a "far right" court "toward the center."

The only network broadcast to use any of those phrases was an NPR interview in which liberal law professor Paul Rothstein of Georgetown University said that Ginsburg might offer a "subtle change ... a nuance" in "the balance of the court" because she would line up with Justice O'Connor in the center....

AF:
I think the reason is that the Court is now seen is being centrist, so Alito will "shift" the entire Court from a centrist Court to a rightist Court. When Ginsburg was nominated, it was understood that she would move the Court leftward, but it was not anticipated that she would "shift" the Court's overall ideological balance in any qualititative way.
1.20.2006 2:02pm
just a thought (mail):
Or maybe the difference in coverage has something to do with the fact that Ginsburg is the only one of the last eleven new Justices who replaced a Justice to his or her right. The Democrats have won the popular vote in 4 out of the last 8 Presidential elections (many would say the electoral vote too) and have gotten to make a grand total of 2 Supreme Court nominations, while, over the same period of time the Republicans have turned their popular vote majorities into 7 new Justices (plus the elevation of Rehnquist to Chief Justice). That fluke, more than anything else, is responsible for the current rightward drift of the Court.
1.20.2006 2:18pm
Thales (mail) (www):
In point of fact, has Ginsburg (by herself) really moved the Court leftward? I can think of only one standout opinion of hers that is palpably more "liberal" than what the 1993 Court might have allowed--the Virginia Military Institute case, and that was 6-3 if I remember correctly. In the same time period, the Court moved noticeably "rightward" (or stayed status quo) in its brief pseudo-rescussitation of commerce clause limitations, and in most other areas of law, barring a few individual rights cases--e.g. Lawrence v. Texas.
1.20.2006 2:22pm
Greedy Clerk (mail):
So, what's the point? The amount of tears I see coming from conservatives about how the media is not fair to them could fill the Pacific Ocean — even though the media strains to make things "fair" for conservatives all the time (but that's another story).

As to the Ginsburg v. Alito comparison, a few facts will explain this discrepancy:

1. Fact: Ginsburg is less "liberal" than Alito is "conservative."

2. Fact: Ginsburg's nomination for several reasons was less controversial than ALito's. Thus, obviously, there would be less media attention to her nomination. For christ's sake, she was chosen by the REPUBLICAN SENATE RANKING MINORITY MEMBER on the Judiciary Committee — that wacky pro-abortion, pro-homos Orin Hatch. She was a COMPROMISE choice — Alito was a clear "fuck you" choice to the Democrats, everyone knows that — conservatives even gloated over it in the wake of the Miers nomintation. To now turn around and cry that you are getting the fight you want is absurd and laughable.

Another fact: Republicans routinely blocked circuit and district court appointments of Clinton's without holding votes. A whopping three or four Bush appointees have been blocked by Dems (and those who were blocked are real winners — Brett Kavanaugh for example would be better writing for Penthouse Forums than for the DC Circuit, see eg the Starr Report).

It is sad when generally intellectually honest people like Volokh buy into the BS propaganda that the Republicans put out that they are soooo opressed. And this is an area in which he has expertise —- yet there is no problem endorsing the silly comparison of Ginsburg's nomination to Alito's which just a few FACTS will show was quite different.
1.20.2006 2:25pm
Thales (mail) (www):
Greedy Clerk,

Brief note: Hatch is pretty clearly a pro-lifer, but sometimes willing to vote for pro-choice judges.
1.20.2006 2:29pm
SimonD (www):
The Democrats have won the popular vote in 4 out of the last 8 Presidential elections (many would say the electoral vote too) and have gotten to make a grand total of 2 Supreme Court nominations, while, over the same period of time the Republicans have turned their popular vote majorities into 7 new Justices
The last eight Presidential elections, you say? That would be 2004, 2000, 1996, 1992, 1988, 1984, 1980 and 1976. Democrats won only three of those (1976 and the two in the nineties), and Republicans won six. Suddenly the numbers seem to look a little closer, don't they?

I don't think those victories are flukes, either - I think the fluke was that in 1992, there was a spoiler on the ballot and some whiners on the GOP's right who threw the election to Clinton, thereby delaying for a decade the course correction the Court had been in urgent need of for at least two decades.
1.20.2006 2:38pm
xx:
I think this says more about rampant "borrowing" of ideas among journalists than about politics. Media produces its own momentum. For example, is there any reason why "disgruntled" became a term of art to decribe violent ex-employees other than that reporters continually borrowed the term from one another?
1.20.2006 2:40pm
Jacob (mail):
I don't know about Alito shifting the court, but I do know about garnering conclusions from counting Lexis search results- and I'm as unpersuaded by Mr. Boaz's use of this method as I was by Al Franken's. Does he really feel there's no significant chance our lexicon has changed in the past decade, or that the issues to which the public pays attention might be framed a bit differently these days? Is it really more likely that journalists use "shift to the _____" and "balance of the court" more often in 2006 because of some big agenda, and not because they merely prefer these phrases nowadays (because they have a different understanding of the judiciary, or because those are the phrases politicans are using, or because they liked it when some other journalist used them)?
1.20.2006 2:44pm
trotsky (mail):
Keyword: Popular vote. Think about 2000 a bit more deeply.
1.20.2006 2:45pm
Bob Bobstein (mail):
Greedy Clerk, I'm a fan of yours, and I littered unrelated threads with demands as to whether you'd been banned a couple weeks ago. I think you have a few good points in your post and I share your frustration.

But holy crap, please unclench. At least tone down on the profanity. You're not helping your cause any with your lecturing, sarcastic tone, Antonin. (said sarcastically)

As to media impartiality and media borrowing of ideas, here's an interesting bit on that today.
1.20.2006 2:47pm
Defending the Indefensible:
SimonD,

First, 3+6=9.

Second, JaT referred to the popular vote, which is a fine point to put on it, but the 2000 popular vote went to Gore.

So JaT is literally correct, but disregards the electoral college.
1.20.2006 2:49pm
NickM (mail) (www):
FACT: Greedy Clerk is pulling things out of thin air and calling them facts.

FACT: There is no objective scale to compare how liberal or conservative Alito and Ginsburg are. There isn't even an objective definition of what liberal and conservative are in judging.

FACT: Ginsburg was not "chosen" by Orrin Hatch. She was among several names of judges that Hatch, as Judiciary Committee ranking minority member, proffered to President Clinton as being people that Clinton might be interested in and that the Republicans in the Senate would not fight. The only 2 people the GOP Senators specifically signaled a willingness to fight were a pair of career politicians.

FACT: After Senate Minority Leader harry Reid floated Harriet Miers' name as a possible choice and she was nominated, Reid backtracked from supporting her and indicatd he knew little about her.

FACT: Few prominent Republican figures are ever observed suggesting there should be a permanent balance on the Supreme Court.

FACT: No justice is ever a carbon copy of another justice. Some justices (see, e.g., Blackmun in Garcia and Usery) aren't even carbon copies of themselves.

FACT: Democrats, while in the Senate minority, have blocked more of Bush's nominees to the bench without votes being held on those judges than Republicans did while in the Senate minority under Clinton. The number blocked by the Democrats is more than 3 or 4 - even if you don't count the judges who they blocked for years but relented on as part of the "gang of 14" agreement.

FACT: Greedy Clerk's apparent prurient interest in the Starr Report is a private and personal matter that shold not be discussed further on this blog.

Nick
1.20.2006 3:03pm
Ghebs:
In terms of the idealogical characters of the justices, yes, Alito might only have a small impact. But it only takes a small shift on the personal level to have huge changes show up in the court's decisions, which is what ultimately matters. How many times in the past 10 years has O'Connor sided with the more liberal justices to produce 5-4 decisions? Replace O'Connor with Alito and all of those cases become reversed.
1.20.2006 3:19pm
Erik H.:
How about the Occam's razor of explanations: Things are vastly different now, than they were when Ginsburg was appointed.

Laws are different. The nation's focus on Washington is different, as are its expectations. The national involvement in politics is different, as it often is in wartime. Even the type of coverage which news media provides of politics is far different than it was 10 years ago. Hell, forums like this one, which are both widespread and influential, didn't even EXIST 10 years ago.

Given the vastly different climate, it's disingenous--slimy, almost--to pick and choose a random comparison of print media language and wave it about as a battle flag. Shall those who disagree with you go hunting for our own statistics next?
1.20.2006 3:20pm
ACLU chris (mail):
Nick: you are wrong about the comparison between bush and clinton judicial nominees; approximately 60 clinton nominees did not even get a hearing; one, in my 6th Circuit, was nominated in 1995 and had not had a hearing upon bush's inauguration. much of the blocking in bush's first term was in retaliation to hatch's obstructionism during clinton's last term.
1.20.2006 3:24pm
SimonD (www):
DtI:
SimonD, First, 3+6=9.
Touché.

JaT referred to the popular vote, which is a fine point to put on it, but the 2000 popular vote went to Gore. So JaT is literally correct, but disregards the electoral college.
Yes, I saw he meant the popular vote, but the popular vote is irrelevant - you might as well say that every internal DNC poll went for Gore, or that Gore won a majority of the votes of "LawProfs for Leftists" members - one cannot simply "disregard the electoral college," it is the mechanism by which the President is elected, which is why I'm not going to quibble whether or not Clinton "won" in 1992. Bush in 2000 and Clinton in 1992 won by the same mechanism as every other President since Jefferson: they got more votes in the electoral college. It's nice to get a popular majority, but it's unnecessary, and not particularly relevant.
1.20.2006 3:33pm
SimonD (www):
FACT: No justice is ever a carbon copy of another justice.
I agree, but tell that to the Democrats who say Clarence Thomas is Nino's second vote, or the Republicans who suggested Thurgood Marshall was Bill Brennan's second vote.
1.20.2006 3:36pm
Greedy Clerk (mail):
Thanks ACLUJ for pointing out NickM's blatant misrepresentation or unfamiliarity with what he is talking about. Keep trying Nick. . . .
1.20.2006 3:39pm
Jacob (mail):
SimonD-

not to put words in JaT's mouth, but i'm guessing he thought the popular vote relevant as a measure of "the will of the people" (or whatever). the journalists covering these issues aren't a function of the constitution, but reporters to the public. so when they report on a subject like "the court," they'll do so with a broader context than the governmental formula for "how we got here." i'm guessing JaT believes the popular vote in a presidential election is a better indicator of the public's choices than the electoral college, and i would have to agree (though it's probably only incrementally so...way too many variables involved in both, obviously). that's where the relevance is.
1.20.2006 3:44pm
Rob Johnson (mail):
Nick:

Nice post.

ACLU Chris:

The loss of Democratic Senators in 2004 was in retaliation their obstructionism during Bush's first term.

Greedy Clerk:

The numbers in Volohk's post don't lie . . . read 'em and weep.
1.20.2006 3:47pm
Juan Notwithstanding the Volokh:
This is why they call Volokh the master. I'm only surprised that nobody has jumped to his defense by saying Volokh never claimed that there was anything wrong with the media coverage. He just quoted what someone else said about it.

You think maybe he is reasonable for a few posts, defending the ACLU against misleading attacks, but then this quasi endorsement of a misleading attack. I'm sure Volokh would say that this is just interesting trivia and does not reflect any view on his part that the media are unfair to republican nominees as compared to democratic nominees, right Prof.?
1.20.2006 3:51pm
Rob Johnson (mail):
Juan Not. the Volokh,

Why misleading?
1.20.2006 3:55pm
Frank Drackmann (mail):
If Mary Jo Kopechne was alive in 2000 she probably would have voted for Al Gore and increased his margin of victory in the popular vote.
1.20.2006 3:59pm
Bob Bobstein (mail):
Nick's statement was carefully crafted enough that it might be technically true, but misleading (what some people call Clintonesque). He wrote: "Democrats, while in the Senate minority, have blocked more of Bush's nominees to the bench without votes being held on those judges than Republicans did while in the Senate minority under Clinton."

Thing is, the GOP obstruction strategy may not have reached full fruition until they got a majority in the Senate. So Nick may have taken the time to craft a statement that's true and irrelevant, because it doesn't address the GOP actions that apply to the discussion.

The fact is, the GOP prevented even hearings on dozens of Clinton's nominees. Now, tho, they seem to have come around to the view that the Constitution demands an up-or-down vote on non-Democratic, non-Harriet Miers nominees.
1.20.2006 3:59pm
Bob Bobstein (mail):
Frank Drackmann, thanks for your well-reasoned insight. Now the issues have fallen into place. Nothing like an unfunny non sequitur to advance understanding.
1.20.2006 4:06pm
El Capitan (mail):
"How many times in the past 10 years has O'Connor sided with the more liberal justices to produce 5-4 decisions? Replace O'Connor with Alito and all of those cases become reversed."

Well, yes, but replace Ginsburg with a Justice of White's voting patterns, and a lot of them are 5-4 decisions the other way as well. In terms of ideological shift, the replacement of White with Ginsburg is pretty comparable with replacing O'C with Alito (depending where Alito comes out). In a way, it was worse for conservatives -- with White they had 6 Justices they could have a reasonable chance of getting to 5 with (on issues that would cut the Court across its primary voting dimension), with Ginsburg they have 5. With Alito, they'll still have 5, although their odds of getting 5 will be stronger.

I think the 800lb gorilla in the room is Bush v. Gore. Lots of average Americans became intimately aware of the importance of the Court since then. In many ways, that's what changed.

What WOULD be interesting, would be to run the same search for the Thomas and Souter hearings, both of which shifted the Court to the right much more than Alito will (even with how Souter "turned out").
1.20.2006 4:08pm
Rob Johnson (mail):
Bob Bobstein:

I'm sorry, but I thought NickM's post was in response to Greedy Clerk's ridiculous ("clenched," as you put it) post above.

His statement that "There is no objective scale to compare how liberal or conservative Alito and Ginsburg are" is unobjectionable. And his description of Hatch's role in the nomination of Justice Ginsburg to the Supreme Court is accurate. Focusing, as you put it, on his "technically accurate, but misleading" statements about which party has blocked more judges misses the point of his post.
1.20.2006 4:21pm
KMAJ (mail):
Bob Bobstein,

"Thing is, the GOP obstruction strategy may not have reached full fruition until they got a majority in the Senate. So Nick may have taken the time to craft a statement that's true and irrelevant, because it doesn't address the GOP actions that apply to the discussion."


And therein lies the error in your assessment, the democrats are NOT the majority in the Senate. Comparing actions of a Senate majority with a Senate minority is superfluous. Comparing Bush's first two years with Clinton's last six, where the opposition party had a Senate majority, or Clinton's first two years with Bush's last three, same party majority, would be the more legitimate comparison.

Comparing fillibusters with blocking in committee is also fraudulent, they are not synonymous, but are reflective of Senate majorities.
1.20.2006 4:29pm
Houston Lawyer:
If you want to look at the popular vote, the last Democrat to be elected president with a majority of the popular vote was Jimmy Carter. Pointing out media bias is not a claim that you are being oppressed. Supreme court appointments have, at least since Bork, been highly charged affairs. The primary reason for this is Roe v. Wade and its fundamental illegitimacy.
1.20.2006 4:31pm
Kazinski:
The press is merely stating the obvious, anytime you get a new justice it is going to change the balance of the court. Sometimes more than others, but it will be different. But what better basis is there for those changes than the results of the last election? The last election for both the executive and the Senate was pretty clear. And I don't think there would be many people that would dispute that Alito very adequately reflects the views of the winners of the 2004 election cycle.
1.20.2006 4:35pm
Bob Bobstein (mail):
Rob--

Greedy Clerk's post was not ridiculous. It was factually accurate, but intemperate.

Nick's statement that there is no objective scale is wrong. See here.

According to a Legal Times study of voting patterns on the appeals court in 1987, for instance, Ginsburg sided more often with Republican-appointed judges than with those chosen by Democrats. In cases that divided the court, she joined most often with then-Judge Kenneth W. Starr and Reagan appointee Laurence H. Silberman; in split cases, she agreed 85 percent of the time with then-Judge Robert H. Bork -- compared with just 38 percent of the time with her fellow Carter appointee, Patricia M. Wald.

By contrast, University of Chicago law professor Cass Sunstein found that Alito, in the overwhelming majority of cases in which he dissented, took a more conservative stance than his colleagues.


Greedy Clerk may have been imprecise as to Hatch's role, but his point stands. Clinton asked the minority party for input, and he picked a justice that was acceptible to them. That didn't happen in the Alito nomination. Hence, as Greedy Clerk explained, the Alito nomination is a "screw you" to the other party, which the Ginsburg nomination, born of cooperation with the minority party in the Senate, was not.

I only wrote about one point in NickM's ridiculous post because that was where the discussion had turned. Thanks for the chance to clear things up!

I didn't mean to leave the impression that the rest of his post was any less full of inanities, irrelevancies, and inaccuracies. For example, the irrelevant and psuedo-postmodern claim that "No justice is ever a carbon copy of another justice. Some justices (see, e.g., Blackmun in Garcia and Usery) aren't even carbon copies of themselves." Well, ok, but Alito is widely agreed to be more conservative than O'Connor, and the GOP's indifference to the concerns of many Dems made this nomination controversial.
1.20.2006 4:36pm
Bob Bobstein (mail):
KMAJ-- I don't think that Dems were ever as unfair to the GOP as the other way around. Here's one take, from the admittedly partisan PFAW. As to your argument that "Comparing fillibusters with blocking in committee is also fraudulent, they are not synonymous, but are reflective of Senate majorities," it is a unconvincing. Both are delaying tactics. The GOP made much more use of them than have the Dems.


The Senate under Democratic control confirmed 100 of President Bush’s judicial nominees in 17 months. The 100 confirmations represent significantly more than the 71 judges confirmed during the first two years of the first Bush administration and the 75 confirmed during the first two years of Republican Senate control during the Clinton administration. In fact, these 100 confirmations are more than the number confirmed during any of the Republican controlled Congresses under President Clinton, when there was an average of only 38 confirmations per year.

In 2001-2002, the Senate reversed the rise in judicial vacancies caused by the previous Republican controlled Senate. As a result of the serious delays during the years that the Republican Senate majority controlled the process, the total number of federal court vacancies increased from 65 in 1995 to 111 in July 2001, an increase of more than 70 percent. Between July 2001, when Senate Democrats resumed control, and November 21, 2002, the number of vacancies decreased from 111 to 60. For nearly half of these vacancies (29), the President has yet to submit a nominee.
1.20.2006 4:47pm
Rob Johnson (mail):
Bob Bobstein:

Do you really think you found an objective test for how "liberal" or "conservative" a justice is?
1.20.2006 4:47pm
Daniel Chapman (mail):
My god this entire comment thread is digusting...
1.20.2006 4:47pm
Bob Bobstein (mail):
ugh, that's "pseudo" two posts up.
1.20.2006 4:48pm
Rob Johnson (mail):
Help us out Daniel Chapman. Do the numbers show a liberal bias in the media? It sure looks that way to me. I'm still waiting for an answer from Juan Notwithstanding Volokh on why he/she thinks looking at the numbers is misleading.
1.20.2006 4:51pm
Bob Bobstein (mail):
Do you really think you found an objective test for how "liberal" or "conservative" a justice is?

Yeah, I put that too starkly, but the point is that, in their manner of selection and in comparing their records, Alito further from the dead center of the spectrum.
1.20.2006 4:58pm
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1.20.2006 5:08pm
KMAJ (mail):
Houston Lawyer,

I think you make a valid point, Roe is the driving force behind the elevated level of emotional arguments. Defense of Roe is driven by politics, not by legal reason. Put simply, Roe is bad jurisprudence, even Harvard law Professors Lawrence Tribe and Alan Dershowitz admits that.

"One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Laurence H. Tribe, "The Supreme Court, 1972 Term--Foreword: Toward a Model of Roles in the Due Process of Life and Law," 87 Harvard Law Review 1, 7 (1973).


From Dershowitz's book 'Supreme Injustice', he equates Roe and Bush v. Gore:

". . represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political processes[.] Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy)[.] [C]lear governing constitutional principles . . . are not present in either case." (p. 194).


There are numerous other pro-choice advocates who are willing to admit the same, including Blackmun's clerk:

"As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather." Edward Lazarus, (former clerk to Harry Blackmun) "The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell's Nomination Only Underlined Them," FindLaw Legal Commentary, Oct. 3, 2002


So it is possible to believe in the pro-choice position and denounce the Roe decision.
1.20.2006 5:13pm
KMAJ (mail):
Bob Bobstein,

The unfairness issue, 'who is more unfair', can fairly be attributed to one's political point of view.

You miss the distinction, blocking in committee is a majority function, the fillibuster is a minority attempt to overrule the majority. Nor is it debateable that the frequency of the use of the fillibuster for judicial nominees by democrats far exceeds its use in the past.

The PFAW statistics are clearly a distortionary presentation as they try to skew the statistical representation by lumping District Judge appointees with Appellate Judge appointees. If you deal strictly with Appelate Judges, your figures will paint a decidedly different picture. I do not think you will debate that Appelate Judges are more important than District Judges.
1.20.2006 5:27pm
Apollo (mail):
According to a Legal Times study of voting patterns on the appeals court in 1987, for instance, Ginsburg sided more often with Republican-appointed judges than with those chosen by Democrats. In cases that divided the court, she joined most often with then-Judge Kenneth W. Starr and Reagan appointee Laurence H. Silberman; in split cases, she agreed 85 percent of the time with then-Judge Robert H. Bork -- compared with just 38 percent of the time with her fellow Carter appointee, Patricia M. Wald.

By contrast, University of Chicago law professor Cass Sunstein found that Alito, in the overwhelming majority of cases in which he dissented, took a more conservative stance than his colleagues.



Can you not see that's like comparing apples and democracy (Or at least like comparing apples and roast beef)? In the first, it talks about agreement by party (Ginsburg and Republicans), in the second it talks about dissent by ideology (Alito's dissents, and Cass Sunstein's *cough* wholly objective *cough* definition of "conservative). Let's leave out the obvious fallacy in relating party to ideology (unless you want to equate Stevens and Thomas), this is a serious categorical flaw that makes the comparison read like an LSAT "This argument is most succeptible to which of the following counterpoints" question.
1.20.2006 5:27pm
Frank Drackmann (mail):
Actually if Mary jo Kopechne had survived, she likely would have had several voting age children by the time of the 2000 election, and chances are they would have voted for Gore also.
1.20.2006 5:28pm
Jim Rhoads (mail):
Bob:

I think you are carrying a heavy burden here to compare a Senate majority's (Republican) disposition of the judicial nominations of a President of the opposite party (Clinton)to a Senate minority's (Democrat)treatment of judicial nominations of a President of the opposite party (GWBush).

I also think that if the shoe were on the other foot in the Senate (i.e. the Senate were controlled by the Democrats), this President would have no chance whatever of getting the same judicial nominees through the Senate that have been confirmed during the past two years.

Moreover, I believe there would have been only a slim chance that Roberts would have gotten out of committee and no chance that Alito would have.

Also,do you really believe that the unanimous or nearly unanimous affirmation of Justices Ginsburg and Breyer were the result of Sen. Hatch's auggestion to President Clinton?
1.20.2006 5:30pm
Apollo (mail):
Perhaps if you compared the percentage of dissents when Ginsburg was more liberal than the majority to the number of times Alito was more conservative, then there might be a point. But probably not, since that's just as likely to be a commentary on the judge's colleagues as on the judge himself. If you put Breyer and 8 Communists on a court, he might consistently come down to the "right" of them, but that doesn't make him objectively conservative.
1.20.2006 5:32pm
NickM (mail) (www):
It seems some people don't understand the difference between being in the majority and the minority in the Senate (and for all of 1995 through 2000 the Republicans held the majority in the Senate). When the President's party is the minority party in the Senate, it is ridiculous to assume his nominees have majority support in that situation, and being able to not put his nominees up to a vote is part and parcel of the majority's inherent power to set the agenda. There is nothing illegitimate or anti-democratic about it. The cure is a simple one - the President's party needs to convince the nation to give them a Senate majority (or conversely, the Senate majority party can convince the nation to elect that party's Presidential nominee).

Blocking tactics when you are in the minority in the Senate and the President is of the other party is a whole different story. KMAJ hit it right on the head.

Bob Bobstein - if you're going to try to Fisk someone, you actually need to point out what was wrong that they said, rather than hurling a claim that it's "full of inanities, irrelevancies, and inaccuracies". [Any connection to "Lions and tigers and bears, oh my!"?]

It is your rejoinder that is irrelevant, because any nomination will always shift the balance on the Court (assuming there is a stable balance - something I reject, which I pointed out with the Blackmun reference). It was commonly felt that Ginsburg was more liberal than White, for whatever that is worth in Constitutional interpretation, and therefore changed "the balance" and possibly the outcome on every 5-4 decision on which he was in the majority. [It would change "the balance" on every case, although that is the only situation where it would likely change the outcome.] It is a wholly meaningless claim, unless it is merely a demand that the President pick someone not considered likely to disagree on carefully selected 5-4 precedents with the judge being replaced. Trying to "freeze" constitutional law in that fashion is not within the rights of the Senate minority.

Nick
1.20.2006 5:40pm
Richard Riley (mail):
I think David Boaz's piece reflects a little rewriting of history that's going on re Ginsburg, in light of the Alito nomination. I distinctly recall that - ACLU, feminist scholarship, etc. etc. notwithstanding - Judge Ruth Bader Ginsburg of the D.C. Circuit, when nominated for the Supreme Court, had a distinct reputation as a center-left moderate. I say that as a D.C. lawyer who follows the D.C. Circuit pretty closely. She was very much NOT the second coming of J. Skelly Wright, or the D.C. Circuit's answer to Stephen Reinhardt, or anything of the sort. It is simply not accurate for Republicans to say "We supported a lefty like Ginsburg, now you should support a conservative like Alito." Judicially, Ginsburg was never a lefty. (Hence Orrin Hatch's pre-nomination imprimatur, noted in comments above.)

I say all that as a supporter of Alito - mainly for the reasons stated by Orin Kerr on this blog and Alito's 3d Circuit colleagues at his hearing - clearly his instincts are conservative but he's a solid fair-minded judge, and what the hell else can you ask for?
1.20.2006 6:14pm
steveh2 (mail):
Nick, the point is pretty simple: Either every nominee deserves an "Up-or-down vote", or they don't.

If they do, then they deserve such a vote regardless of what party controls the majority of the Senate.

The fact is that the Republicans used the power they had in the Senate (committee control, blue slips, etc.), to avoid a vote on many, many Clinton nominees. They therefore cannot complain when Democrats use the power they have in the Senate to do the same.

And while this fact is not "Constitutionally" relevant, it is worth remembering that even today, the Democrats in the Senate represent the majority of Americans (I believe).
1.20.2006 6:53pm
juris imprudent (mail):

...and the GOP's indifference to the concerns of many Dems made this nomination controversial.


Bob, I am shocked, shocked I say, that the GOP should be indifferent to the concerns of Dems.
1.20.2006 7:01pm
KeithK (mail):
While it is certainly true that one can devise metrics to measure how conservative or liberal a justiec is, this is very far from an objective measurement. The choice of metric is a subjective one. While the number of times a judge agrees with judges appointed by the other party may be an obhectively measureable quantity, how well this indicates bias is not. Sunstein's determination of how conservative Alito's dissents were is subjective. I bet that someone could come up with a seemingly reaosnable mertic that would show that Ginsburg is more radical than Alito. It's all in how you devise the test.

I do not believe that it is possible to objectively measure a persons political beliefs or tendencies. Even if you could, it would require much more than a single dimension to characterize.

Those on the left now claim that Ginsburg is more mainstream than Alito because they are attempting to argue that maintaining the balance on the court is of paramount importance. The objective truth of this question, if there is any, is irrelevant - it's just politics.
1.20.2006 7:10pm
Rob Johnson (mail):
Steve2:

Nice strawman. Republicans have not argued that EVERY nominee deserves and "up-or-down vote."

Rather, they have insisted that nominees, WHOSE CONFIRMATIONS ARE PENDING ON THE SENATE FLOOR, deserve an up-or-down vote.

Nominees have never been given an up-or-down vote, and Republicans have not argued that they deserve one, when (1) the nominee withdraws his or her own nomination, (2)the President withdraws the nomination, or (3) the nominee does not make it out of committee.

Denying up-or-down votes to nominees whose confirmations are pending on the senate floor is unprecedented. I hear Tom Daschle doesn't think it's a good idea anymore.
1.20.2006 7:39pm
Greedy Clerk (mail):
Moreover, I believe there would have been only a slim chance that Roberts would have gotten out of committee and no chance that Alito would have.

Note that the author is referring to if the Senate were controlled by Dems. Obviously, he is right. When Democrats controlled the Senate, only moderates got to the Supreme Court: Scalia (unanimously confirmed), Rehnquist (twice), and Thomas. All squishy moderates. What we really need are some real conservatives, like David Duke.

It seems some people don't understand the difference between being in the majority and the minority in the Senate

NickM, I admire your efforts. I really do. But wrong you are. During the Clinton days, when Republicans had a majority, they did not give Clinton's nominees the holy "up-or-down" votes, hell they did not even let them out of committee. And how did they accomplish this? Well, they had a thing called a anonymous hold, where a single Senator, under certain loose conditions, could anonymously hold any judicial nominee. Awesome procedure. Those nominees held, would have been confirmed if they were given up-or-down votes -- otherwise, why deny them a vote, and a hearing??

Moreover, I suggest you look at the records of the Senate in the 1993-95, when Clinton was Prez and had a Dem Senate. Plenty of his nominees were not give votes, due to either outright filibusters, or the more popular home-state hold where a Republican Senator (in the minority) could hold any nominee in his home state who Clinton nominated. You know what happened to the home state hold rule when Bush became President? The Republicans ditched it as "unfair." Wonder why.

Keep trying Nick, you'll get it right one day.

1.20.2006 8:06pm
Greedy Clerk (mail):
Denying up-or-down votes to nominees whose confirmations are pending on the senate floor is unprecedented.

That is an outright wrong. Dead wrong. Clinton nominees were filibustered despite getting out of committee from 93-95. Either you are a liar, or more likely, your news "source" is Rush Limbaugh and Sean Hannity, and you drink their Kool-Aid without independent thought. Do any republicans think for themselves these days? Or do you just get your marching orders from Fox News, et al. Media Bias, my a--.

1.20.2006 8:10pm
The NJ Annuitant (mail):
As I have written before, I believe that the super -majority requriement for cloture is unconstitutional. The constitution sets out the times that a super-majority is called for, and limiting debate is not one to them. I do not think that a Senate rule can trump constitutional text. The argument that Article I permits the Senate to make its own rules does not rescue the cloture super-majorityrequirement. After all, the Congress can enact legislation , but if the legislation is unconstitutional it is null and void. I think the same applies to a Senate rule.
1.20.2006 8:49pm
The NJ Annuitant (mail):
Forgive my third -rate keyboarding. When I was in school, the wisdom of the day was that professionals did not need to learn how to type. There would always be a secretary to take care of that.
1.20.2006 8:52pm
Nat (mail) (www):
No one has mentioned the fact that Democrats have been talking up the supposed shift in the balance of the court since Roberts was nominated. They've fed the story to the media - and they've done a good job at it (and I say this as a Democrat who rarely finds good things to say about their media strategy).
1.20.2006 9:32pm
Noah Klein (mail):
NJ:

That same constitution you're touting says that each house is able to make their own rules. The Senate in the early 1800's made a rule about the desire for a Senator to have unlimited debate. These rules were changed a little in the 20th century, until the last change in the 1970's made it so that to obtain cloture the body would have to produce 61 votes. You may not like the rules, but there they are. I'm not happy about some rules, but I still have to follow them. There unconstitutional there and to suggest that it is so is ridiculous.

Rob:

I am sorry, but you are just plain wrong. Republicans, since the regained the Senate have been arguing for an "up-or-down" vote. They made no qualifications or limitations on this rule. Here is a link to demonstrate it and here are some quotes from Scott McCllelan:

"Nominees that have been waiting for a long time for an up or down vote are now going to get one. That's progress," White House press secretary Scott McClellan told CNN.

"We will continue working to push for an up-or-down vote on all our nominees."


Thus they are being entirely hypocritical, because they did not allow this when Clinton was president. But the Democrats have been hypocritical too. It is when the Republicans take this hypocrisy to level of eliminating a long-standing and well-regarded Senate practice (not withstanding the faults of single and now thankfully dead Senator).

Noah
1.20.2006 10:06pm
NickM (mail) (www):
I don't admire your efforts, GC, because you're dishonest.

<>

Thank you, Karnak, for predicting the votes that Republican Senators would have cast on a Democrat President's nominees. In any case, this is a red herring on your part. Comparing 1995-2000 to 2003-05 is wrong. 1993-94 should be comparable to 2003-05, and the material portion of 2001 and all of 2002 should be comparable to 1995-2000. It's the same question about split control versus one-party control.

<>

Besides the fact that there was a GOP majority Senate for 1995, your "facts" are fictitious. There were 0 filibusters and 0 serious attempts at filibusters (14 people voting against closing debate, while another 40 GOPers vote to close debate, is not a serious attempt to filibuster) on Clinton judicial nominees.

Meanwhile, I challenge you to name all the Clinton judicial nominees during the 103rd Congress who were not confirmed during that Congress due to a hold placed on them by a home-state Republican Senator. Even Jesse Helms didn't do that. [The one NC noninee by Clinton who was not confirmed that year had been nominated in October 1994, was renominated in January 1995, and was confirmed in March 1995.]

Oh, and calling someone like Dianne Feinstein or Joe Lieberman a Republican because they're not far enough left for you doesn't count.

Nick
1.20.2006 10:42pm
The NJ Annuitant (mail):
GC -- The Senate's rule has never been tested in Court. Normally, you would think that a Senate rule is non-justiceable, but , again, a Senate rule cannot trump Consistutional text. Would you think that a Senate rule that says treaties could be ratified by a simple majority is valid?
1.20.2006 11:26pm
Noah Klein (mail):
NJ:

You shouldn't misdirect comments. Greedy Clerk said nothing, as far as I know, about the issue of Senate rules and filibusters. Firstly, the filibuster is the idea that a Senator has the right to speak as long as they wish on any topic they desire. It is one of the methods that makes the Senate a more collegial body than the House. Senate rules are non-justiceable and they cannot violate the text of the constitution. Thus they can't create a lower standard for such things as impeachment trials or treaties or so on, but they can create a higher standard.

Noah
1.20.2006 11:51pm
The NJ Annuitant (mail):
Noah --
Could the Senate enact a valid rule that it would henceforth confirm treaties by a simple majority?
1.21.2006 2:21am
The NJ Annuitant (mail):
Noah --
In this regard, look at both the majority and dissenting opinions in a 1997 D.C.Circuit case, Skaggs v. Carle ( I have forgotten the cite, but I have given you enough to get it from Findlaw). My argument is not with the initial right to unlimited debate, but with the super-majority vote needed to limit debate.
1.21.2006 2:40am
Kent Scheidegger (mail) (www):
Greedy Clerk, you are correct that some Clinton nominees were denied up or down votes by bottling up in committee and that some of the more heated Republican rhetoric is hypocritical. However, I believe you are mistaken when you say that some of them were filibustered. Can you cite a reference to back up this statement?

It is my understanding that the only Democrat nominee ever filibustered by the Republicans was Abe Fortas. That was only for four days, and there were major ethical issues there (e.g., taking money from people with business before the Court), over which Fortas subsequently resigned. If others were indeed filibustered, I would be interested in knowing the specifics.
1.21.2006 12:02pm
Thorley Winston (mail) (www):
Meanwhile, I challenge you to name all the Clinton judicial nominees during the 103rd Congress who were not confirmed during that Congress due to a hold placed on them by a home-state Republican Senator. Even Jesse Helms didn't do that. [The one NC noninee by Clinton who was not confirmed that year had been nominated in October 1994, was renominated in January 1995, and was confirmed in March 1995.]


Gerry Daly had a post which gave one of the most detailed analysis of the judicial confirmation statistics from Truman through the first term of Bush 43’s administration. Needless to say there weren’t even close to 60 nominees sent by Clinton that didn’t receive an up-or-down vote. At most there were 38 nominations that were returned (meaning that they didn’t get an up-or-down vote that session) which is misleading since each time a nominee is sent to Congress and resubmitted the following session (and usually gets an up or down vote then) is counted as a separate nomination. Nine of those BTW were submitted in January of 2001 after Bush 43 had been elected President which makes it unlikely that they were sent with the expectation that Congress would have enough time to vote on them and it seems more likely that they were sent to “run up the numbers.”
1.21.2006 12:13pm
Grover_Cleveland:

Could the Senate enact a valid rule that it would henceforth confirm treaties by a simple majority?


The Constitution explicitly says that two-thirds of the Senators present must concur to approve a treaty (2.1). Therefore a rule specifying a smaller majority would be unconstitutional.

On the other hand, the Constitution nowhere says that a majority vote is sufficient, in either house, to pass any legislation or to take any action. Thus either house could, for example, decide that a 60% majority is required to pass a bill or confirm a nomination. Blue slips and filibusters may be unfair but they are not unconstitutional.
1.21.2006 3:02pm
j:
If O'Connor is a "moderate conservative," then Ginsbrug surely is not a "moderate liberal." Does anyone really think there's a chance that Ginsburg might side with the conservative wing of the court in landmark cases?
1.22.2006 2:08pm
farmer56 (mail):
Greedy Clerk

playing what if is fun. How about, what if the people of the United States Elect one party to both the executive branch, and, the legislative branch of the federal govt? Does that give the people, the right to appoint the members of the judicial branch? Dont forget...The people decide what is main stream!
1.23.2006 5:20pm
Tank Murdock:
Link,

Yes, Ginsburg most certainly would side with the conservative wing of the court in a landmark case. She sided with Scalia and Thomas in the blockbuster punitive damages cases - - Cooper v. Leatherman and State Farm v. Campbell.
1.23.2006 6:21pm
The NJ Annuitant (mail):
Gover_Cleveland -- Please take a peek at both the majority and dissenting opinions in Skaggs v. Carle ( D.C. Cir. 1997 ). You can get it from Findlaw.
1.23.2006 11:09pm
farmer56 (mail):

think the 800lb gorilla in the room is Bush v. Gore. Lots of average Americans became intimately aware of the importance of the Court since then. In many ways, that's what changed.


Yes El Capitain

That is the 800 lb gorilla. Just. SCOTUS did not decide the 2000 presidential election. SCOTUS determined that the State Supreme Court of Florida had no standing in interjecting themselves into an election, where no one asked them to offer an opinion. SCOTUs just asked a question 'only the legislative branch of Govt sets laws for elections'. Under what authority does the Supreme Court of Florida have to order a recount, that neither of the agreived parties have asked for? I bet you can come up with that part of the Florida law that allows for the judicial branch of govt to demand a state wide recount, that no one asked for.
1.24.2006 3:58pm