Interesting Then, and Now:
I was surfing about the Interweb recently and I came across this 2002 article by my colleague Jeffrey Rosen about the failed DC Circuit nominations of Allen Snyder in 1999 and John Roberts in 1992. I remember reading the article when it came out, but it's still pretty interesting to read six years later (in part because Roberts ended up in a relatively high-profile position in the end). Too bad Snyder was never confirmed, though: I thought he would have been an outstanding judge.
Is this necessarily accurate of appellate courts? Can't an appellate court, at least in theory, "distinguish" the cases that come before it in such a way as to make "new law"? Of course, even if I am right about what an appellate court can "theoretically" do, that does not necessarily mean that appellate courts are in the habit of doing so.
do0d,
WTF are you saying “Interweb”?
This year, we call it the “interwebtubes”!
Get with the progam, man. Geez.
"relatively" high-profile position? relative to what? being the Pope?
What's also interesting is how Rosen's tune has changed about Roberts now that Roberts has been confirmed to the Supreme Court.
Finally, let me say that I hope the obstruction continues under the Obama Administration. I hope the GOP has the guts to retaliate, eye for eye, tooth for tooth, Pickering for Kagan, ___ for Keisler, because you don't win wars by surrender.
That's a useless thing to say.
How has Rosen's tune changed about Roberts? I had Rosen for Crim Pro last fall, and he jokingly copped to having a John Roberts man-crush on several occassions. He also speaks glowingly about Roberts in his most recent book.
I think the Republicans will lose seats (New Mexico, Colorado, and Virginia, in particular). Other seats will likely remain Republican, though a very outlier case can be made that Republicans in Alaska, Kentucky, Maine, Mississippi (Wicker), New Hampsire, and Oregon might lose. However, the Democratic incumbent in Louisiana is just as, if not weaker than, any of those three named. Additionally the Democratic incumbent in New Jersey is also polling very anemically at this juncture.
The Democrats had high hopes for Minnesota, but Al Franken is an extremely damaged candidate.
So to have a filibuster proof Senate, Democrats would a) have to run the table, including Minnesota--and many of the Republicans mentioned above are running ahead of their Democratic opponent--as well as win both Louisiana and New Jersey. And, even if that happened, b) Democrats have to hope that Joe Liberman plays along with them.
It is possible--but my guess in the end is that Wicker will beat Musgrave (following the long tradition of southern Democratic governors who cannot make it to the U.S. Senate) along with McConnell (Kentucky), Collins (Maine). and Smith (Oregon). I also predict that Stevens is ousted in the primary. With Stevens gone, Alaska is uncompetitive for the Democrats.
Sununu may still lose--and is the likeliest incumbent Republican to be beaten in the general this year.
Realistically, a Senate that is 55 or 56 Democratic, counting Lieberman as a Democrat. 61 Democrats (where Lieberman's vote is unnecessary) is Kos-fantasyland.
The sentence that now reads: "However, the Democratic incumbent in Louisiana is just as, if not weaker than, any of those three named" should read, "However, the Democratic incumbent in Louisiana is just as weak as, if not weaker than, many of those Republican seats named."
Finally, as corneille notes, there's no exact magic number to arrive at a functionally filibuster proof majority situation in which Senate consideration is not a factor that plays much of a role in a President's judicial nomination choices. I don't know why you assume Lieberman has departed from the Democratic coalition entirely--unless we assume he's completely opportunistic, it seems more realistic to take him at his word that his dissatisfaction with the Democrats mostly stems from foreign policy (and especially Iraq), and expect him to vote for cloture on and in favor of liberal judicial nominees. Along with the prospects of Snowe, Collins (assuming she is re-elected), Specter, and even Voinovich defecting on any given cloture vote, Republicans could avoid electoral disaster and still be helpless to prevent some very liberal appeals court judges from being rammed through the Senate.
However, I suspect that if a nominee is "too liberal", the first sign will be in the Senate Judiciary Committee, where I am led to believe that Senator Specter has been less than thrilled with the Democrats game playing on judicial nominations. And someone who is "too liberal" will not get the votes to ensure cloture.
What is the "Interweb"? Is it your internal web system at GW Law ... privy only to the GW community?
Wikipedia has the story here.
I am reminded of a story Joe related. You must first know that he is and has been for many years virulently anti-Bush. But for some reason he was in a White House meeting when Karl Rove came in to speak with him. Rove pointed out that the President loved the show, as did Rove. Straczynski was, he reported, quite shaken.
And one should point out that Babylon 5 explored many interesting legal and libertarian issues in great detail and with much thought.