Stuart Taylor thinks that Senate Democrats are being short-sighted on judicial nominations, and that their actions may come back to haunt a President Clinton or Presient Obama:
Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.I would add to Taylor's argument an additional reason why the Senate Democrats' approach is particularly short-sighted: As a campaign issue, judicial nominations has been a more successful campaign issue for Republicans than Democrats. In both the 2002 and 2004 elections, judicial confirmations were an issue that helped motivate the Republican base and boosted GOP candidates in tight Senate elections.If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative? . . .
If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.
As I have said before (perhaps ad nauseum), I believe that Senate "advice and consent" should be fairly deferential, and I do not believe that ideology is a reason to reject highly qualified judicial nominees. Insofar as judicial philosophy should influence judicial selection, I believe it should influence the President's selection of nominees, not the Senate's decision on whether to confirm that nominee.
Among other things, I believe there are many reasons why the Executive is more likely to take a "long view" in assessing judicial philosophy than is the Legislature, and is less likely to focus on specific judicial controversies. Some of these reasons were suggested by Alexander Hamilton in Federalist 76.
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.Others relate to the fact that Presidents are term-limited, whereas Senators are not — meaning that Senators are more likely to have to "live with" the decisions of confirmed judges for a longer period of time than the President, and therefore may be prone to consider how a judge will address specific issues. Thus, executive branch interviews of judicial nominees include broad discussions of judicial philosophy, whereas Senators routinely try and pin judges down on specific issues, sometimes even specific cases.
Such arguments aside, Taylor is clearly correct that Senate Democrats are creating conditions for future judicial nomination fights with their treatment of Southwick and other Bush nominees.
UPDATE: I have already addressed most of the objections of the questions raised in the comments in prior posts on judicial nominations. I summarize my views in this post, which includes links to prior posts with greater detail. (See also here.)
I recognize the difficulty of convincing either side to engage in "unilateral disarmament." My suggestion -- which I have made before but is hardly original with me -- would be for a Senate resolution endorsing a given set of rules to take effect after the next Presidential election. If done far enough in advance, there is the possibility that there would be enough uncertainty about which party would control the White House (and the Senate) that each side might agree, but it would require substantial political leadership to make this happen -- and the window for such a deal before the 2008 election is rapidly closing.
Related Posts (on one page):
- Are Democrats Short-Sighted on Judges?
- Senator Schumer's Says No More GOP Justices:
The Senate Judiciary Committee under Hatch did all the same sorts of things that Taylor puts on the table. C'mon.
And for those who will pipe up with the Senate votes on Ginsburg and Breyer, remember this. Clinton picked two people whom Hatch told him would be acceptable.
What's really at issue is the federal appellate courts. And Hatch regularly bottled up nominees who were "too liberal".
The only thing that's "shocking" here is the usual lack of historical perspective that we regularly get from the media these days.
To quote Number 2, "That also already has happened." (I.e., what Keyes said.)
If nothing else that Democratic President will be able to borrow all those Republican speeches about how every nominee is entitled to an up or down vote.
I'm guessing the MSM will provide the presumptive Democrat president with whatever standing he or she needs.
(Emphasis mine.)
So, Extraneous, what exactly is it that compels you to write "Democrat president" instead of "Democratic president"?
Not a peep there.
This battle of nastiness was begun by the Republicans, in particular Helms; the only issue I would take with the Democrats is that they did not retaliate forcefully enough.
After all, the only reason Bush has all these seats to fill in the first place is because of "blue slipping."
At some point, I hope sense sanity and civility returns to the process. But till then, the Democratic appeasement approach strikes me as unilateral disarmament.
Yeah, this describes GWB - a sense of duty to the impartiality of justice, fairness, good faith . . .
But, retaliation aside, I think the post's point is valid to an extent. Michael Wallace was "too conservative" in a meaningful sense. I practice law in Mississippi, and I heard from several conservative lawyers -- people who would sooner commit homosexual acts than vote Democratic -- that they thought Wallace couldn't be fair-minded.
Southwick, OTOH, has a great deal of support on both sides of the fence. He's conservative, but not "too" conservative, in any reasonable estimate.
The background issue, it seems to some of us in Mississippi, is that the state has exactly *one* black judge on the federal bench (not counting magistrates), Henry Wingate, a Reagan appointee nearing retirement age. Bush hasn't tried to appoint any blacks, that anyone knows of.
If the Republicans have been earnestly seeking qualified black federal judges, but just can't find any, then they need to speak out about their efforts. If they haven't, then it's not surprising that yet another white nominee -- however qualified -- is garnering an "enough is enough" reaction. It's unfortunate that Judge Southwick is caught in this mess through no fault of his own -- and despicable that inferior minds are trying to attack *him* as a racist, homophobe, etc. -- but so long as we ignore the background issues, this kind of sniping will continue.
IIRC, Southwick had been tapped for a district-court seat when Wallace withdrew, and was bumped up in response. Perhaps a compromise would advance Southwick to the 5th Circuit while appointing a black attorney to the district court (i.e., "grooming" him or her for a potential 5th Circuit seat in future). I personally know of one very qualified black (and female) applicant for the district court seat.
As others have pointed out, Republicans played the judicial blocking game better than anyone during the Clinton years. Even if Democrats start giving in on all of Bush's nominees, does anyone really think Republicans will then give a future Democratic President all of his/her nominees?
I wouldn't say it was a compulsion, Keyes. Is one more correct than the other? I assume a Democrat who is president is a Democrat president, just like a Republican who's president is a Republican president. Sorry if it was a faux pax; I didn't mean anything by it. (Unlike my point about the media!)
I just suspect it's human nature.
I have addressed the history of judicial confirmation fights, including unwarranted obstruction by Republicans, extensively in prior posts. See my summary here and the posts cited therein. Both parties are guilty of obfuscation and hypocrisy on this issue. The reality, however, is that Senate Democrats began the attacks on circuit court nominees in the mid-1980s, Republicans responded in kind (and then some), and Senate Democrats have upped the ante yet again. I want this to stop -- and the sooner the better -- and I do not want further obstruction of nominees from either party going forward. It is not healthy for the judicial system to be so politicized.
JHA
And what makes you think this would NOT be an issue for the Democratic base this time around?
The only solution to this problem is to come up with a gaurantee that any party in power will get their nominees. I mean, gaurantee, not a 'promise' or an 'agreement.' Anything short of that is meaningless. But to ask for the Democrats to fall on their sword in the mere hope that the Republicans will be nice in the future is living in the clouds.
You would be more persuasive, and seem less like a partisan hack, if you could justify this with some facts.
For three years, I had a job that included reading every opinion that Southwick published during that time. He was easily the most talented judge on the state appellate bench -- I didn't clerk for him, but the Miss. Sup. Ct. justice I did clerk for would probably agree with my assessment.
Southwick was the kind of judge to write 10-page concurrences to a 5-page opinion, clarifying legal issues muddled in the majority opinion. He always had an evident interest in getting the law right. I recall in particular a dissent he wrote to an affirmance of a burglary conviction, where he cared enough to write a long opinion explaining why it wasn't burglary, but rather larceny, to enter a business through an unlocked, ajar door.
(Full disclosure: Southwick was one of 3 judges in my moot court finals in law school. I lost.)
It has been evident for quite a while that Southwick deserves to sit on the federal bench, and I hope he does yet.
Furthermore, the timing of "Senate Democrats began the attacks on circuit court nominees in the mid-1980s..." is intriguing and just all too pat as an explanation.
Might there possibly have been a change in the type of judicial nominee which the Reaganites offered? Remember that the Republican's current Court-packing philosophy started very explicitly with Ed Meese. I'd like to hear a fair-handed comparison of Republican nominees over the whole 20th century. Maybe the Democrats are simply reacting to a change in Republican tactics.
Bingo.
Today, the politics of party and special interests will always prevail in such situations because (a) they usuallly do in all circumstances, and (b) nobody remembers a President for his judicial appointments, except for a few law &politics nerds.
I doubt you really think that Democrats are creating future fights. Rather, they are failing to take steps that could (but probably would not) reduce the possibility of future fights. Neither side has any reason to de-escalate on judges. The most sensible thing would be for Bush to horse-trade with Senate Democrats -- give them a black jurist in Mississippi in exchange for Southwick, withdraw more controversial nominees, etc.
But as you point out, Bush has no incentive to do this because judicial nominations are a good issue for Republicans. The Democrats have no incentive to make it easy for the administration. Any slot that isn't filled by Jan. 20, 2009 very well may be filled by a Democrat rather than a Republican. The Democrats can and should use whatever tools they have to try to make the administration negotiate, or to keep Republican judges from being seated.
The idea that if Democrats play nice now the Republicans will return the favor is naive. As for whether they will appear hypocritcal when the tables are turned, they will appear no more hypocritical than the Republicans, who will parrot the democrats' arguments from 2002-2006.
He certainly struck me as intelligent and competent. An intelligent, competent, but deeply political animal.
So the President is allowed to consider ideology, and judicial philosophy, but the Senate is limited to reviewing the nominee's resume? Then why have a confirmation process at all, in place of a checklist of "qualifications?"
I don't understand why confirmation fights are such a bad thing. The alternative seems to be to effectively cede the President the right to nominate anyone. That's going to produce more partisan courts, and more courts peopled with patronage appointees, than the current procedures.
I personally think the best thing would be for nominees to start answering the questions, instead of hiding behind the usual platitudes. I also think any discussion of the judicial selection process that pretends ideology doesn't influence results is out of touch with reality.
I would be very interested in anything else on this part of Judge Southwick's career, though certainly there is a difference between a political job in the administrative branch and a seat in the judiciary.
Let me be clear: there is nothing wrong with exercising political judgment in deciding whether the Government should file a lawsuit. That is why political appointees are given such decisionmaking authority. So there was nothing unethical about the matter I'm talking about.
But I think it supports the point others are making. When a nominee's career has been, at least in large part, infused with politics, it is hardly objectionable for the other side (the Senate Democrats) to consider politics when deciding whether or not to confirm him.
We need someone to counterbalance the conservative ideologues though before all our rights are sucked away by the stroke of Scalia's sweaty pen.
If it led to moderates' appointments, then yes. But the fear is that instead we get "stealth" nominees without paper trails.
N.b. that, contrary to the bleating of Schumer and Specter, that doesn't apply to Roberts or Alito at all. They were *obviously* ideological conservatives who would vote reliably in the Rehnquist/Scalia mode. Lacking courage, the Dem Senators decided to close their eyes and pretend the nominees were "moderate conservatives." After all, look how cute Roberts' little boy was!
If your precious Democrats are so weak-kneed and lily-livered, then it's fantastic days ahead for the GOP. Thanks!
Sadly, weak-kneed and lily-livered is a huge improvement over Bush-worship. Faute de mieux, my friend, faute de mieux ....
Enough said. Reject him.
Now that I think of it, the boy named Sue probably grew up to be a plaintiffs' attorney.
Adler is right in that it's ultimately a destructive process from the standpoint of efficient government, and it may also be an issue of public trust in the judiciary.
But, seeing as how only one party controls the Senate at any one time, to give up the power of withholding up or down votes on nominees would amount to a unilateral disarmament. That's rarely a rational decision to make, on the margin, so it's virtually inconceivable that any Party will give up that power now.
The solution to the problem is going to be structural and eliminate the prime power motive for the Senate to control these votes so closely. Namely, the federal judiciary itself will have to be restrained, either by legislation or Constitutional amendment forcing it to wield less power on matters or political importance (controversy). It is no coincidence that the nominations became politicized soon after the court took on legislative powers as a matter of course.
So, it's not so much a President Hillary having to battle against apparent hypocrisy when trying to push through a nominee. Some of her most persuasive arguments and talking points will be utterly de-fanged by the fact that she has voted to deny votes in the past.
I recall a naval aviation officers seminar, called Tailhook, in the 80s. Some of the officers got drunk and behaved inappropriately. Congress set out a massive screening process, to deny promotion to any person who was at Tailhook and who did not purge their sin of attending a professional seminar by promoting women in aviation.
The game has now been ramped up, and Senate Democrats just threw the chairman of the joint Chiefs off active duty because he failed to report that the Iraq war was lost.
This game leads to only one result in the end, as any student of the late Roman Republic knows.
The very first nasty battle that I remember was that of Bork. Before that I thought I had only witnessed basically a rubber-stamping.
Regarding the second point, it has been my impression that career government employees tend to be politically to the left of center. If a conservative is elected and appoints like minded department heads I would expect the rejection of liberal proposals made by the careerists. As a matter of fact I would think the people have "demanded" such rejections by their vote. You have implied career government workers don't have a political view in their recommendations.
1) The idea that precedent matters in the judicial nominations political arena is something that I don't agree with or even comprehend. You think just because the Democrats take a certain position now, to the GOP's benefit, the GOP will be later bound to the Democrats' position?
2) I don't think the judicial nominations "politics" matter much in general elections, other than a subplot to the Christian Conservative movement. Unless the GOP turns to Thompson, I don't think this is going to be a winner either way for the GOP.
3) Hillay Clinton and Barak Obama trying to win a Democratic primary. That their positions may be marginally useful later to the Republicans is not going to factor into their decisions, particularly when the general election will be primarily about Iraq, with some "corruption" memes thrown in.
Did you really quote Hamilton un-ironically after the Harriet Miers nomination? Really?
Yeah, let me count the problems. It seems that Hamilton was talking about the "one man's" reputation in the first sentence. That wasn't really burnished by the Miers nomination. He certainly didn't investigate her qualities with care or prefer with impartiality the many more qualified candidates. Given that Hamilton was so completely and 100% wrong on this, maybe confirmation fights really ARE a good thing.
And, no, the Boy Named Sue did NOT grow up to be a Plaintiff's lawyer. He searched the honky-tonks and bars for his father, then he kept fighting in honky-tonks and bars
"every time I'd try and every time I'd win"
But Stuart Taylor's concern trolling essay is warning Democrats that it wouldn't be tactically proper (rather than morally) to block Bush's nominees, because Republicans would ostensibly seek revenge during a Clinton/Obama/Edwards Administration. However, why is the fact that Republicans had little problem filling the vacancies they created during the Bush Administration not an extremely relevant data point? It would seem to undercut Taylor's entire argument. I guess it would get in the way of Prof. Alder once again telling Democrats that doing whatever Republicans want is really in their own best interest.
There probably IS a reason. I always assumed that the term "Borked" was deliberately coined &spread to push a particular political point. Considering that its users have generated at least three definitions in this discussion, it seems to be a word in search of a meaning, rather than a meaning that found a word. Same way "Swift Boated" was created.
I see nothing wrong with the Senate blocking any and all appointments if it wants. The Dems think (with good reason) that they will get both the Presidency and a larger Senate majority in 2008. So, naturally they want to maximize their political benefits by keeping as large pool of judicial appointments as possible available.
1. Is it true that Republicans created many vacancies during the Clinton Administration?
2. Is it true that during the Bush Administration, the Republicans had little problem filling the vacancies they had created?
3. Why did they have such little trouble?
4. Is the same situation likely to occur in 2008?
5. Should the Democrats therefore now create lots of vacancies?
6. Will anyone credit them if they do not?
7. Are you a concern troll, or is it just Taylor?
With all due respect, you give Republicans way too much credit if you think they would not go out of their way to block Democratic nominees, notwithstanding any acts of foolish generosity by Democrats now. They did so at the end of Clinton's term, and they would do so if they gained a majority in the Senate, regardless of how we treat their nominees now. Democrats would be foolish to listen to you. Republicans will take any gift we give them, and act just as aggressively as they always have in the future.
As far as judicial nominees working better for Republicans, that will change in the future. Democrats have not focused or been as organized with respect to judicial nominees as Republicans. Rather than surrendering the fight to Republicans, Democrats should rally their own base on this issue.
Here is the best Democratic plan for judicial nominees. Win elections. If Republicans don't have a majority in the Senate, they can't block our nominees.
Your strategy, with all due respect, is naive. Your statement that ideology should not be considered strikes me as sinister. I do not understand how you can think that ideology should not be a factor, since as a member of the Federalist Society, you should realize that it matters greatly for your side. Do really believe that Republicans are unconcerned with ideology? Let us not pretend otherwise.
If you are making an institutional argument that only the President should concern himself with ideology while the Senate ignores it, that idea has absolutely no basis whatsoever in our Constitution and would be politically foolish for whatever party controls the Senate. Of course the Senate should consider the exact same factors the President does in making his nominees. The Senate has no obligation to act as a rubber stamp. They have a right to withhold consent for any reason they like.
Mr. Adler is also a blogger at Bench Memos. I did not confuse him with Ed Whelan, I said he was less extreme than Mr. Whelan.
I did mistakenly think that Orin Kerr wrote this post, which I thought was out of character for Mr. Kerr. Because Mr. Kerr is less extreme then Mr. Adler. That is a mistake I noted above. However, I did also not confuse Adler for Whelan, as you suggest.
Since we do not know who the President will be (or which party will control the Senate), a pledge by the entire Senate to adopt such a rule would hardly be partisan for either the Democratic or Republican Parties.
My suggestion hardly seems radical--and I think it worthwhile regardless of whether the President's last name is "Clinton," "Obama," "Giuliani," "Thompson," or something else.
Hamilton has a host of questionable assumptions in the quote Prof. Adler cited:
Yes but reputation as regards to what? What if the reputation the President desired to advance was not 'appointer of qualified judges' but 'appointer of ideologically sound judges'? Why should we assume that the reputation the President wants to protect is one of competence rather than idological purity?
Less likely perhaps but less likely is not the same as impossible. The President may be mislead by the "sentiments of friendship and of affection" just as any Senator might and what recourse would the Senate have if they could not consider ideology?
But, in a pluralist society, wouldn't we rather have a diversity of views making decisions rather than one view.
Recall that the Founders did not forsee the President as leader of a political party. Since the office of the Presidency has evolved to include leadership of a party, why should we continue to assume that the President is less likely than the Senate to consider partisan affiliations?
Again the assumption that the President will only consider merit is highly questionable. If he uses something other than merit, the Senate (under Prof. Adler's admonition not to consider ideology) will be powerless to check it.
What is the problem with a little horse-trading when it comes to appointing judges. Again, in a pluralist society, a little bargaining of this sort is a good thing (in terms of getting more points-of-view represented on the bench) not a bad thing.
Again, the Founders did not see the President as a party leader. Since he is, the Senate members of the opposing party should be able to make their views heard on the ideology of judicial appointments.
I think it's a good one. I'd add a default provision that the person is automatically confirmed if no vote is taken, just to prevent a minority from delaying tactics to achieve indirectly what the proposal bars directly. I'd probably also bar recess appointments for judges; there'd be no need for them under the new rule.
Both blue-slipping and the filibuster help bring about more centrist judges. Since in most instances either party will have enough Senators to sustain a filibuster, having a filibuster encourages a President to consult the Senators of the other party. Of course, the nefarious and useless Gang of 14 pretty much made the filibuster useless, but I think it should be brought back in a stronger form.
The argument for blue slips is weaker, since the person blue slipping a nominee might themselves be extremists. (i.e. Jesse Helms). But nonetheless, the practice has value in that it forces the President to consult with Senators more.
If the filibuster were ended with respect to judicial nominations, it should be ended with respect to everything else. In fact, the filibuster should be ended, since it is extraconstitutional and seriously modifies the workings of our democracy without any constitutional justification. But if the filibuster is going to be ended, it should be ended for everything, not just judicial nominations.
Finally, the idea that the full Senate should vote even the Judiciary Committee prefers otherwise fails to respect the unique qualifications that members of the judiciary committee bring to evaluating judicial nominations. If the Committee doesn't want to bring a nomination forward, then that nomination probably shouldn't be brought.
It would be hard to say no in that context, no?
Some Senate candidates could try to promote it in their campaigns, but it wouldn't get nearly the attention.
And the thought of Hilary asking fellow NYer Schumer to sign here . . . priceless.
I think your thought that it would be hard to refuse this suggestion of yours in the context of a presidential campaign is incorrect. Giving judicial nominations an up or down vote without the okay of the Senate Judiciary Committee isn't exactly an issue that is going to determine many votes for President.
With respect to the feelings of the Judiciary Committee--I suspect (and I certainly hope) that the 81 Senators who are not members of the Judiciary Committee have the ability to think for thsemselves and decide whether or not to support a particular nominee.
I certainly have no problem if the Judiciary Committee holds hearings and even sends a nominee to the floor with a recommendation of "Do Not Confirm"--but there is nothing in the Constitution that gives a Senate committee the power to stop a nomination from being advanced and there should be nothing in the rules to thwart a dedicated minority from blocking a nominee who otherwise has wide bipartisan support.
Judges are appointed for *life*, and while in theory a judge can be "repealed" by impeachment, that's not only impractical, but requires a 2/3 supermajority.
There are good reasons for heightened deliberation, not to mention anti-partisan firewalls, in the confirmation of judicial nominees.
Those 'unique qualifications' are not much in evidence come hearing time, are they? The Jud Committee's performance on S Ct picks has been a joke since the Thomas hearings.
Oh, I completely agree. I would add that I disagree entirely with Prof. Adler's post -- I think Congress should consider philosophical/policy issues. I also believe they should refuse to confirm judges who give vague or misleading answers. Having done all that, though, I think they should vote on them.
Painfully true, tho not dispositive.
Yes there are. But I prefer a straightforward supermajority confirmation requirement, say 3/5 or even 2/3, to the current system. The trouble with the filibuster arrangement is that it generates a lot of posturing and phony arguments and games and political cover for, say, those who favor a nomination but don't want to admit it.
I don't think that, in a closely divided Senate, it's unreasonable to say that a nominee who can't draw the support of 5-15 members of the minority party isn't the best choice for a lifetime appointment.
The Constitution gives the power to the SENATE to advise and consent, not to a committee. Maybe the members, in casting their up and down votes, should give great weight to the Committee's opinion, but not a full handoff of power.
Ok, that's what I had more or less assumed. Just not very familiar with the verb "delaminate". Rephrase as much as you like and leave my drivers license alone.
The Gang of 14 are probably still too exhausted from saving the country to take up this moonbeam. You think the Remainder of 86 are going to bite?
Anderson, you want a higher or lower bar for judges? I don't see that judges are different. But then, I'm not a lawyer.
Your theory on why the president is more qualified to appoint based on ideology is all fine and well, and the drumroll of "this has to stop" has plenty of supporters in the abstract, but as Sandy Levinson has previously pointed out, deescalation here is harder than getting the world nuclear free. You argue that Democrats should unilaterally disarm first (or at least not escalate up while they can); and hope that Republicans reciprocate later. The problem is that when later comes, Republicans have no obligation or incentive to reciprocate, and historically have not done so. Rather, they played the Democrats for suckers--as they should have. Nor is there any real way to create a "norm" of reciprocity -- any norm of this kind in the past has gone the way of the dinosaurs.
This is, of course, the familiar problem of what to do in a world where there are no binding contracts. The unambiguous answer is to grab as much as possible while the grabbing is still good, as we go to hell together in a handbasket. Not pretty, but there it is. If there was a Democrat President and a Republican Senate, the political strategy will surely be (and in recent memory was) the same.
Unless you have any revolutionary ideas (and it really would be revolutionary, for contract law, for international law, and for economics in general), the short response is that you are wasting your breath on this issue because the outcome is preordained by the immutable laws of political economics.
Um, what standing did Republicans have to protest under Bush given their conduct under Bill Clinton? If anything, they were far MORE obstructive as a matter of course. Democrats have held up a few high profile nominations, but by and large their record is comparable to or better than the Republicans under Clinton as far as getting nominees on the bench.
This fact may have some relevance, but not as much weight as some people give it. Yes, it says that Clinton was willing to work with Hatch and stay within Hatch's parameters. But it also says that Hatch was willing to pre-approve someone like Ginsburg.
So the question is a classic baseline one. (I think Mark Field summarized the baseline issue well the other day in another thread.) Is Ginsburg -- or more important, was the 1993 Ginsburg -- centrist, or slightly-left, or way-left, etc.
I think a good case can be made that Ginsburg, in 1993, gave as many indications of being a predictable vote on the left that Alito did last year. If Leahy put Alito on a pre-approved list, would that make Bush's appointment more moderate? Or would it merely mean that Leahy was willing to fo pretty far right to accomodate the Prez?
Many of you may disagree on whether Ginsburg is the left-equivalent of Alito, or is merely as left-of-center as O'Connor was right-of-center, or whatever.
But, putting aside where you place Ginsburg, it seems hard to deny that the relevance of the Hatch-Clinton story does turn on THAT question about Ginsburg, and not just on the mere fact the Prez. worked from an opposing party's list.
(Same is true of Breyer, just using shorthand, and that many would place her left of him, etc.)
In saying "predictable vote on the left that Alito did last year," I meant that "Alito did on the right last year," as he of course is not a predictable vote on the left!
And I meant "Leahy was willing to GO pretty far right," not "fo."
But still, Bork was a watershed in confirmation politics. It was so because many of his opponents said then, or admitted since, that it was not just about the a yes/no referendum on the nominee, but about the shift in "balance" since swing-voter Powell was retiring. I think Ralph Neas and others have admitted that if the Bork and Scalia nominees were reversed, they would have gone after Scalia, as Bork would have been an acceptable net replacement for Burger. (And they were distracted by fighting Rehnquist's promotion to chief, and Senate control changed in the 86 elections, etc.).
But the bottom line is that everyone here knows about Bork, and with that in mind, I find it hard to take seriously claims such as this one by tvk above:
and this one by plunge:
The Democrats successfully blocked Bork, and got Kennedy as their reward. Post-Bork, the Democrats scared Bush I into the no-paper-trail Souter gamble, which worked out OK for the left. Thomas was 52-48, and I suspect, based on the pre-Hill "regular" hearings, that he would have drawn at least 20 or 30 "No" votes.
THEN, after all that, Ginsburg gets OKd 96-3.
Add all you want about the Hatch-Clinton consultation, or about how extreme Bork was, or whatever, but the Ginsburg vote, and the Breyer one (about 90-10 or so, I think), mark a serious DE-escalation of the process. Whatever Hatch did in blue-slipping circuit court nominees, the numbers don't lie about the big Supreme Court ones.
Higher bar. Two words: lifetime appointment.
If the Congress passes a bad statute, it can repeal same the next term, by majority vote. If it appoints an ideologically unsound judge, it has to impeach (2/3 vote, plus the issue of what constitutes "good behavior").
dont remember abe fortas or carswell, or some other nixon appointees
Of course, Fortas was not a Nixon appointee.
In Carswell, we missed the chance to have (perhaps) the first gay justice ... appointed by a Republican, no less. And let's not forget one of the great political quotes of the 20th century:
In defense against charges that Carswell was "mediocre", U.S. Senator Roman Hruska stated, "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?"
All a filibuster is, is an internal rule that the Senate won't hold a vote until the debate is over.
Bull. Things got nasty with the nomination of Judge Bork, and got ugly with the nomination of Justice Thomas. Nothing the Republicans have done have been as bad.
By the way, Justice Ginsburg was confirmed 96-3 (even though she was a lawyer for the ACLU...do you think a member of the Federalist society would get the same deference from Democrats?) Breyer was confirmed 87-9. Roberts was confirmed 78-22 and Alito 58-42.
So who is more deferential?
You're right that it's politics, but given the tension b/t politics and the rule of law -- one might even say, "opposition" -- it makes sense to *try* to jigger the system so that mere partisan sentiment isn't enough to get a judge confirmed, be that sentiment Executive or Legislative in origin.
You mean like those hardcore Conservatives like: Justice O'Connor, Justice Kennedy and Justcie Souter?
Are you really trying to say that Judge Bork, Chief Justice Rehnquist, Justice Scalia, Justice Thomas, Chief Justice Roberts and Justice Alito are further to the right than Justice Ginsburg is to the left? Seriously?
As I noted at the top, "What's really at issue is the federal appellate courts."
Hatch's "Blue Slipping" flim-flam proves the point.
After '08
(1) If we have a Republican Pres &a Dem Senate, this war will go on.
(2) If we have a Dem Pres &Dem Senate or a Dem Pres &a Republican Senate, the MSM will have a story every day about justice being delayed for ordinary citizens, the ordinary citizens they'll parade for the public. Republicans will roll over.
(3) If we have a Republican Pres &a Republican Senate but such Republican majority is less than 60-40, will the Republicans throw out the “60 votes needed to stop a faux filibuster rule”? Don't bet on it. And bet on the MSM not having any story about justice being delayed for ordinary citizens, none of whom they'll parade for the public.
I also understand that one aspect of "blue slipping" is that some Senators take proprietary interest in judicial seats. For example, Senator Feinstein "blue slipped" R. Randy Smith for the Ninth Circuit when he was nominated for a "California" seat but withdrew her objection when he was nominated for an "Idaho" seat.
All that said, the purpose of my proposal was to cut the proverbial Gordian knot with the inauguration of a new President on January 20, 2009.
I have no problem with whatever rationale any President chooses to appoint judges. Hell, he or she could consult an Oija board for all I care. If the President wants to place a premium on ideology, fine. If the Senate Judiciary Committee wants to say, "Don't confirm this person," more power to the Committee. But give the nominee an up or down vote.
-Rick
I am not saying that the filibuster is unconstitutional. What I am saying it is outside of the constitution. In that it is not specifically authorized (though I recognize your argument that it is authorized in a very general manner). And it has a major effect on the workings of our democracy. Such a major effect, that it in fact should be in our Constitution or be discarded.
You are right that a majority of the Senate has a right to set its rules. And a majority of the Senate has the right to end the filibuster if it wishes.
Funny that. Why does the filibuster survive when all that is required to put this institution out of business for good is a simple majority? Democrats should act to end the filibuster. Immediately.
Given the long history of the filibuster, the practice is obviously not unconstitutional and that was not my argument.
I am sure you are as aware as I am as to why the Senate does not abolish the filibuster by majority vote: the debate on the Rules of the Senate can itself be filibustered.
As I am sure you are aware, Senate Republicans explained the means of changing the Senate Rules with a filibuster-proof simple majority when they discussed their so-called "nuclear option."
Wikipedia describes the particulars well enough:
I am not sure I agree. Salon certainly disagreed--pointing that Senate Rule XXII requires a 2/3 vote to cutoff debate on amending the rules regarding filibusters.
As a Republican, I think we have compromised too much and the Democrats have not compromised at all. Democrats probably believe the opposite. Both sides tend to believe that they are right. Natural enough. The bad blood has gotten to the point where neither side can compromise at all without their base revolting. The Lieberman affair will be topped in the next cycle.
We can have a civilized discussion or a shouting match and it will make no difference. The chance for compromise has passed. Neither side will listen to the other until external forces resolve the dispute.
Sure. But it takes a majority to repeal Rule 22? Paging Douglas Hofstadter ...
I know there are other ideas relative to how to get more moderate judges, etc., but is anyone arguing that these ideas are compatible with the founders' intent regarding to advice and consent?
Actually, the Salon article you linked to does in fact agree with me. Look at page 3 following page 2 (which you linked to).
My correcting you on what the Salon article, does not mean, that I take Salon.com to be a serious source on the meaning of Constitutional law. =) But if it was, it would agree with me.
Rule 22 would not be repealed. But rather determined to be unconstitutional by a majority of the Senate.
I read the complete Salon article. I also read Rule XXII. I thought the "nuclear option" was stupid then, and with that I agree with author of the Salon article.
I have said repeatedly that I do not think confirmations should be subject to filibusters. But I also think that there is more deference to the Senate rules and traditions (even now) than you suppose.
If either party tried the trick the Republicans threatened in 2005, then what little civility still remains in the Senate would evaporate.
Actually, the filibuster itself was in no way contemplated at all by the Founders. Originally, Senate rules had a rule "to move the previous question" which would end debate and move to a vote. However, in 1806 Aaron Burr successfully and incorrectly argued that this rule was redundant, thus creating a loophole. This loophole was not discovered and used for over 30 years thereafter.
Given that the filibuster was not even something contemplated by the founders, but really is an accident resulting from the carelessness/foolishness of Aaron Burr, to say that the Founders would approve of filibusters for ordinary legislation but not judicial nominations is nothing more than pure and unfounded speculation. The Founders in fact did not anticipate the existence of the filibuster at all.
We would move to a practice closer to that contemplated by the Founders if we repealed the filibuster altogether.
Actually, challenging the constitutionality of Rule 22 by majority vote is completely compatible with the rules of the Senate. Such a challenge shows due respect for the rules. Such a challenge follows established parliamentary procedures.
In fact, as I have explained in my previous post, ending the filibuster would bring our practice closer to that which existed at the Founding and closer to that contemplated by the Founders. There are few things we can do to bring our country closer to our constitutional heritage than ending the filibuster once and for all.
I doubt 2/3 of Senators will ever vote to change Rule XXII (Rule V(2) reads, "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules").
I don't see that Senate sentiment will have changed all that much.
Anyone still interested in the nuclear option story should certainly read the Salon article.
And is *that* rule not subject to change by majority vote?
Attempts to tame the filibuster, back in the 1950s:
Senate rules had always continued from one Congress to the next on the assumption that the Senate was a continuing body because only one-third of its members were elected every two years. Liberals now challenged this concept, arguing that the Senate had a right to adopt new rules by a simple majority vote at the beginning of a new Congress.
The constitutional argument is that a past Senate has no right to decrease the powers of a future Senate. Clearly, the very first Senate had the power to adopt rules on any subject whatsoever by a simple majority. The idea is that the Senate cannot decrease its own sovereign powers. A future Senate cannot have its powers decreased by the actions of a past Senate. The powers of the Senate are set by the Constitution and can be changed by nothing short of a constitutional amendment.
Rule 22 is unconstitutional. And it is the right of the a majority of the Senate, following established parliamentary procedures, to declare it as such.
Since the Senate has the power to make its own rules, unless a rule specifically violates the Constitution (say one allowing the seating of a 29 year-old U.S. Senator), the rules cannot be "unconstitutional" in the manner that Mr. Impressive suggests.
A filibuster has the advantage of being overt, but the disadvantage of permitting a minority to control the Senate. I believe the differing role of the Senate on nominations (for any position, not just judges) as compared to legislation should render the ability of a minority of the Senate to prevent it from advising the President and either consenting to or withholding consent from the nomination unconstitutional. I recognize that the courts have not agreed, and I don't expect the filibuster to go away - it's a very powerful weapon for the minority party.
A hold or "blue slip" is very different - it is an action by one Senator, and there is no good reason to allow one Senator to block action on a nomination in this fashion. A "blue slip" has no real justification, while a hold is only justified if it is public, for a limited time period, and for reasons of real import to the duties of a Senator (e.g., placing a 1-week hold on a vote or hearing due to an impending absence from the Senate).
Get rid of the ability of a single Senator to gum up the works, and you will defuse the fights by getting rid of the most petty and most egregious actions. the current situation, where the President's party is in the minority in the Senate, may be the optimum time to change the rules to this effect.
Nick
The conservative judges, as we all know, are itching to bring back slavery, indentured servitude, end women's voting rights, have homosexuals stoned, and burn atheists at the stake.
(There, I just saved all of you from reading hundreds of articles in the New York Times' archives)
Just spend a few moments perusing the thread above if you doubt this.
On a positive note, it's good to see a Southern judge squirm because of an anti-gay opinion. This just shows how far gay rights have come. Only 20 years ago, sympathy toward gay rights (or worse, wispers that the nominee was gay) would have torpedoed a nominee.