Orin mentioned the upcoming ACS National Convention. In contemplation of a hypothetical Obama presidency, does anyone know what the public perception of ACS is? In other words, if Obama wins, will his nominees be interrogated about ACS affiliations like Federalist Society members have been? Will the Washington Post run stories on the ACS influence over the Justice Department? Will ACS members go out of their way to deny membership? Will an interation of the shoe being on the other foot have any lasting impact of taming this sort of behavior?
Although these questions seem like they are phrased tendentiously, I sincerely wonder about this. I have been distressed by what seems like the real dishonesty of some of the attacks on the Federalist Society and I'm wondering whether the absurdity and nastiness will continue to escalate or whether there will be some sort of truce and step in the direction of respect.
If I had to guess, I'd predict that Republicans and the media will not make a big deal out of ACS affiliation, but that doing so will do nothing to bring about reciprocity toward future Republican appointees.
Also, I wonder whether Republicans would be willing to filibuster Democratic judicial nominations. On this point, I have no strong intuition as to what to expect.
Update:
A couple of Commenters noted that the Republicans used delaying tactics with Clinton nominees--that certainly is true. But they were in the majority at that time. The question I was wondering is whether as members of the minority they would actually formally filibuster nominees. The two issues may essentially the same, but it is not obvious to me that using informal obstructionist tactics when in the majority automatically means that they would use a formal filibuster when in the minority.
Federalist SocietyACS."Good question, 'cause we all remember how easily all of Clinton's nominees sailed through the Senate. (sarcasm)
That said, I fully expect Republican Senators to filibuster and use delaying tactics against a President Obama's judicial nominees (payback is a bitch)--and I expect Democrats to argue that the Republicans are being unfair. Frankly, were I a Senator, I would work for a rule to abolish filibusters for Presidential nominations but I would also play by the rules that are in effect--which would include voting against cloture if I thought it advisable.
It spans libertarians, social conservatives; judicial activists, judicial restraint folks, and (oversimplifying) those who don't believe that Judges should do much of anything (e.g., Lino Graglia).
No, within FedSoc you see substantive disagreement over the ends, the means, the role of the judiciary, the pace of change, the role of stare decisis, commodification/"human dignity", ... and I could go on basically forever.
But yet, the liberal side is chaotic and the "conservative" legal movement (which is neither a single movement nor conservative) is single-track? Hey, you're welcome to make brownies at my place anytime!
the Federalist Societythe ACLUthe Federalist Society
the ACLUany affiliation vulnerable to demagoguery.Nope. The Federalist Society is a group of "conservative and libertarian" lawyers, and that is definitely not a single track, especially in criminal law.
(I'm a past chairman of the FedSoc Crim practice group, BTW.)
W/r/t (1), I don't think an ACS affiliation does much to differentiate a liberal lawyer from other liberal lawyers. W/r/t (2), I suppose one can claim that ACS members want to shove gay marriage, abortions-on-demand, permissive criminal laws and the welfare state down our throats just as easily as one can claim that FedSoc members want to "turn back the clock" to some caricatured cross between historical Salem, MA and a southern plantation. Somehow it seems to me that that sort of fearmongering is more of a liberal thing, but I could be wrong.
I think both sides' arguments reflect political calculation, which is why I'm offended only by the reciprocal expressions of faux principled outrage. And I don't see why any of that would change just because the shoe's on the other foot.
There is good reason to have the Senate act as a check on the more extreme judicial nominees (and this counts on both sides of the aisle -- I don't want any more Warrens nor any more Borks).
--Oh, wait.
As to what will happen, we can be sure that the media will say nothing, and the GOP Senators will roll over just like they always do. What should happen? War. The GOP should repay, measure for measure, everything the democrats did this time. Control of the courts is too precious to surrender without a fight and the threat of a bench full of Reinhardts is too serious for the GOP to surrender in the name of comity.
"[D]oes anyone know what the public perception of ACS is?"
How about "has anyone heard of them before?"
This reminds me of a statement by a Democratic candidate for the Democratic Party's nomination for a State office: "My opponent admits that he matriculated and his wife is openly a thespian."
Frankly, I'm a lot more interested in whatever promises BHO made to the Teamsters and the effect that might have on the settlement they have with DOJ, which ended, largely, that union's blatant corruption.
The problem with the internets is that sarcasm never comes through. But good one, Todd.
You're assuming that after November there will be enough GOP Senators to hypothetically mount a filibuster.
Why would the media care? Doesn't the ACS stand for truthiness, justice and the leftie way, just like the media?
As far as the American Constitution Society, my perception is "who?"
The Republicans will likely lose seats this year. I acknowledge that--but thinking that the Republicans will lose 9 seats is nothing more than a Kos MoveOn fantasy. If you think 9 Republicans (out of the 23 GOP seats up) are going to lose, please point to them. Wikipedia has various professional handicapper's picks.
Virginia is a likely GOP loss with John Warner's retirement and Mark Warner's candidacy.
With respect to the others, Intraade is the most bullish for Democrats (or bearish for Republicans, depending on ones viewpoint). Even Intrade has only six other GOP seats in either the toss-up or leans Democratic column. If Democrats won all of those, the Senate would be 58-42 Democratic.
However, I think Charlie Cook and Larry Sabato are more realistic and the Republicans will ultimately lose between 3 and 5 seats, putting them at somewhere between 44 and 46 seats.
I debated between "hypocritcal" and "unfair." I ultimately chose "unfair" because the Democrats will argue (hypocritically IMHO) that they opposed "extreme" nominees and Republicans are opposing "mainstream" nominees.
only could be? you have obviously been asleep for longer than i've been alive.
So in a great year for democrats, they could win New Hampshire, New Mexico, Virginia, Minnesota, Alaska, Colorado, Maine, Oregon, and Texas. That's nine seats. Idaho (thanks to Larry Craig), Mississippi (thanks to Obama), and Oklahoma are long-shot possibilities as well. I don’t think any of this will happen. But it’s not entirely crazy to think the democrats could control 60 seats in the senate next year.
I assume they'll make both arguments. My point (not that you should have known from the vague way I made it) was that I personally consider it hypocritical, but otherwise fair. I'll feel the same way about any Democratic threat to respond with the nuclear option, though I'll be surprised if that threat is acted upon. And if that expectation turns out to have been naive, it won't be my first.
As I said in my first post a filibuster proof Democratic Senate is Kos/MoveOn orgasmic fantasy. If you think Idaho will turn against a highly popular former Governor (now Lieutenant Governor for Idahoan reasons) you really are defintely drinking the KoolAid.
Alaska will dump Ted Stevens in the primary, and it will be Frank Murkowski redux (the Democrats thought he would be defeated--and he was, in the primary).
Cornyn and Dole (Texas and North Carolina) are both favored. as is Inhofe (Oklahoma).
I am not sure how Roger Wicker is going to lose because Obama is on the ballot in a state everyone figures McCain will win handily. Perhaps you can enlighten.
I could go state by state but have neither the time nor the inclination to do so.
The reality is a 3-5 seat switch (including the possibility of Louisiana going from Democrat to Republican).
I'm just telling you this so you aren't disappointed in November,
I attended Senator Schumer's hearing back in 2001 where he made the argument that politics alone should be grounds for voting against a nominee. This could be very bad for the court in the long run.
I expect the democrats to pick up five Senate seats.
If you use a University computer to write a column opposing affirmative action, and a majority of the faculty believe opposing affirmative action is a form of racism, is one committing a federal felony?
Well, if the Obama Justice Department is half as corrupt as the GWBush, let's hope so! But somehow I doubt the ACSers will be bending over backwards to hire Democrats uber alles and dreaming up ways to justify torture.
On the issue raised in the post about unfairness to Fed Soc, there are two types of unfairness - 1) misconstruing their position and 2) overestimating their influence. While the press is likely guilty of the first, I'm not sure that they are guilty of the second - one can frame it more as a testament to the Society's s success than as a critique, but to deny the influence of its members on the Federal government by, say, comparing it to the ACS, does not really do the position of those commenting on its influence justice.
Why not? Majority or minority, in both cases the reason to use these tactics is to prevent a vote on a nominee you oppose who would likely be confirmed.
The only reason I can think of why they wouldn't is if they come up with some better method of blocking nominees.
The Federalist Society is a group of "conservative and libertarian" lawyers, and that is definitely not a single track, especially in criminal law.
These comments really miss the point. Of course the members of the Federalist Society are not ideologically monolithic. Dick Durbin may pretend not to get that, but everyone with a clue understands it.
The conservative legal movement is single-track in that there is one organization - the Federalist Society - that serves as a clearinghouse for all those who wish to get ahead through the conservative movement.
I am simply saying that there does not seem to be any liberal organization that fills the "feeder" role to the same extent as the Federalist Society. Now, I guess ACS would like to fill that role, and maybe they've gotten to the point where they arguably do, but that wasn't my impression. That's why I asked the question.
If every judge appointed by the hypothetical President Obama were an ACS member, then I guess we'd have our answer.
Really? As others (&the updated post now) mentioned, see the Clinton years.
As to your update expressing uncertainty about how the Republicans will behave as the minority party, golly, how could we possibly gain any insight into this?
Oh, I know — how about we look into how the Republicans have been behaving since they became the minority party in 2006? See here for your answer:
link
link
(answer: the current Republican minority set an all-time record for filibusters, and did so in less than half a term!)
Yes, yes, this evidence pertains to the Republican minority's obstructionist tactics w/r/t to all legislation, so they could behave totally different when it came to a Democratic President's judicial nominations. /snark
How silly of you to ask.
Ignorance is bliss though, huh?
Your post seems rooted in recent controversy over the Federalist Society, so let's focus directly on that.
When conservative Republicans held the White House and Senate, would-be judges pointed to their participation in the Federalist Society as evidence of their commitment to the conservative cause [e.g., Samuel Alito].
So why wouldn't liberal Democrats regard would-be judges' participation in the Society as evidence of their commitment to the conservative cause?
The only difference I can see is that the former view such commitment as a positive, the latter as a negative.
At least as defined by left-wing blogs. But getting back on topic, did Republicans really *filibuster* Clintons judicial nominees? Did they attempt to Bork Bryer or Ginsburg?
Feel free to respond.
Republicans have not blocked Democratic nominess simply because they were ACLU members. Democrats have blocked Republican nominess for being "too conservative", as evidenced by FS membership.
Response? Bear in mind that Fortas was an excellent example of a person who should have been filibustered. He resigned from the Court in disgrace shortly afterwards, and would probably have been impeached if he had not done so.
What justified the filibuster of Estrada? It was a nakedly political move.
As to the future of judicial filibusters in the Senate: no judicial nominee was ever filibustered before 2000, except Fortas - and that was a bipartisan effort against a nominee viewed as both corrupt and unqualified.
However, the Democrats have now decided that "they win" is more important than two-hundred-year-old tradition. This will be reiterated under President Obama: any effort by Republicans to block judicial appointees will be overridden.
Filibusters, (also "blue slips" and "holds") are Senate rules that can and will be abolished by majority vote. So is the requirement that nominees go through committee hearings. 51 Senators can confirm a nomination the moment it is announced, if they want to. There is nothing in the Constitution that says otherwise.
This may be too strong. If there are over 45 Republicans, there may be enough traditionalism among the Democrats to sustain blue slips, holds, and hearings. Also, the Democrats will have many tools to accomplish these changes de facto. For instance, a Senator issuing a blue slip or hold could expect a freeze-out of earmarks and such. Many (too many!) Republicans will yield to that.
Then again, the Democrats may just decide "We Won" and bring out the explicit steamroller.
It is very unlikely that Republicans will filibuster, and extremely unlikely that 40 Republicans hold fast. If they ever do, the Democrats will go "nuclear" and abolish the 60-vote requirement for cloture. There will be a press campaign depicting the filibuster as the anti-democratic tool of benighted reactionaries, with much much reference to the obstruction of civil rights legislation.