MSNBC wonders whether conservative groups will mobilize to defeat controversial judicial nominations if Senator Obama is elected president. I hope not. While I doubt a President Obama's nominees would be much to my liking, I do not think the Senate should reject a President's judicial nominees on ideological grounds. Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge).
As Alexander Hamilton explained in Federalist 76, we are likely to get better nominees from a single decision-maker (the President) than a committee, and the primary purpose of Senate confirmation is to place a "check upon a spirit of favoritism in the President" and "to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." His concern was cronyism, not differences in judicial philosophy. Allowing the Senate to have a greater role, he warned, would encourage an undue focus on narrow and parochial concerns, and I think that is what we've seen as the confirmation process has become more politicized. Senators spend hours trying to get nominees to tip their hand on specific issues or cases, whereas recent Presidents have largely focused on a prospective judge's overall judicial philosophy. In my view, the latter is the better way to do it.
So if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight. This is how most Republicans treated President Clinton's nominations of Stephen Breyer and Ruth Bader Ginsburg, and equally qualified Obama nominees deserve nothing less. If this means that a President Obama gets to place several quite "liberal" jurists on the bench, so be it. Republicans have long argued that Senate Democrats have treated President Bush's judicial nominees unfairly. They're right, but the proper principled response is to set the right example, not to respond in kind, let alone to make our excessively politicized judicial confirmation process even worse.
UPDATE: Several comments make good points and raise important questions that I will address in a follow-up post. What is odd, however, is that some commenters seem to believe that Republicans have never obstructed Democratic judicial nominees. This is silly. While Republican opposition to Bill Clinton's Supreme Court nominees was far less that Democratic opposition to both Bushes' Supreme Court nominees, the Republican Senate certainly obstructed some of Clinton's nominees to lower courts -- obstruction which led Senate Democrats to respond in kind, and then some. I've blogged on this extensively before. For round ups with links, see here and here.
On the other hand, what complicates matters is that these guys are in a repeated game where each party will occupy the White House, or the Senate, some of the time. Given that, it's possible that, while blocking judicial nominees may be the most moral thing to do in the short term, some sort of accommodation is better in the long term.
I think the need for long-term coexistence, and the concern that you don't want all of _your_ nominees blocked one day, may well justify a more accommodationist strategy; for me, the justification for accommodation doesn't derive from grand political theory, or from Alexander Hamilton, or from a belief about whether the President or the Senate is more big-picture about nominations.
I can imagine an absolutely vicious fight in the latter case.
I hate not being a hypocrite.
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If Alexander Hamilton and the Founders wanted to limit the Senate's advise and consent role to non-ideological grounds, they should have written that in the Constitution. In the meantime, we should go by what the Constitution actually says, not what you wish it said.
(2) That Hamilton listed some reasons to justify the Senate's advise and consent role, you cannot assume that those were meant to be the only reasons. This is especially true in light of the fact that the Federalist Papers are not legal documents, but instead political articles meant to persuade.
If I give reasons 1, 2, 3 that policy X is desirable, I might feel that is sufficient and not go on and on about every other possible reason that policy X might be desirable. It doesn't mean that reasons 4, 5, and 6 are not also desirable outcomes of adopting policy X.
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You obviously don't know much about history. George Washington's nominee to the Supreme Court, John Rutledge, was denied confirmation to be Chief Justice in part for political reasons. In particular, because he gave a speech critical of the Jay Treaty.
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Your theory is clearly out of whack with original meaning originalism, something that I thought was big with you VCers.
Let's look at the plain words of the Constitution in Article II concerning the Presidents power and the Senates role in the confirmation process.
Well, according to the plain meaning of the text at the time of the ratification of the Constitution, there are absolutely no limitations on the grounds upon which the Senate can withhold its consent. None. It could have said advise and withhold consent for only those nominees who are unqualified or cronies. But it doesn't say that. It just leaves consent unqualified.
I don't see how you can square your claim to be an original public meaning originalist with reading in your own special and favored limitations into the Constitution.
Either you are not really a public original meaning originalist, or that particular approach to interpretation does not in fact do anything meaningful to limit discretion in interpretation.
But if Obama is President, conservatives should do the same to him as the liberals have been doing to the Republicans in the past. I am all for Republicans abiding by higher standards (no one would want to live in a country where the standards of the average Democrat are the prevailing standard), but not when doing so would amount to a collective suicide pact.
Many of the commenters are saying, in essence: Accommodation is great, but the Democrats deserve payback for their past behavior, perhaps because otherwise we'll get leftward drift.
My pro-obstructionist argument would hold that even if the Democrats had been perfectly accommodating, there's a good argument for Republicans to begin obstructing judicial nominees.
Of course, what I said about the dynamic benefits of accommodation -- with the repeated game and all -- still holds. So if Republican accommodationism can lead to an equilibrium where everyone accommodates, that might end up being fine (but whether such an equilibrium is better than an obstructionist equilibrium is still open to debate). Plus, if Republican accommodation will have no effect on Democratic behavior, then there's no reason not to be obstructionist, since there will be no long-term benefits from accommodation.
with eight or seven members.
If the Democratic senators agree to pass a Senate rule that judicial candidates shall not be unreasonably held in committee, and that no filibuster of judicial nominees be permitted, then will be the time to be "principled."
The Senate will be inundated with irresistable constituent pressure, no matter who is elected.
Conservatives have no choice but to do everything short of breaking the law to ensure that Obama doesn't get to nominate anyone he likes.
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The Democrats hold that rejection of a nominee by a minority of the Senate, for whatever reason, is justifiable, constitutional, and the proper thing to do. I urge the Republicans to adopt the same rules, lest they be run over.
Depends on the nominee. If a President Obama nominates a Souter or President McCain nominates a Roberts, then, neutral qualification issues notwithstanding, the Senate ought to confirm. If we get a Ginsburg/Scalia nomination, the Senate ought to be less deferential (at that point, it also becomes important who is being replaced -- if Scalia retires during an Obama presidency, I should hope he would have the tact to nominate a centrist consensus replacement).
We'll accept a Bork if we get a Reinhardt (broadly speaking, since they are both too old to be nominated today). Or, in the interest of having some sort of comity, we could try to keep extremists of both stripes off the courts.
Of course they should. Supreme Court nominees should be broadly acceptable to at least 60 Senators or they shouldn't really be on the court. That applies across the ideological spectrum.
Your solution will simply allow the courts to become packed with left-leaning judges. While you're busy claiming a mantle of honor for having followed the letter and spirit of the Constitution, the reconstituted courts will be re-writing it through reinterpretation, using the powers granted to them within that document.
Will you feel honorably bound to follow the letter and spirit of their new and very different product? The one that will likely hold that "No person shall . . . be deprived of life or liberty without due process . . ."?
Incidentally, game theory also suggests that the opposition party not appear too solicitous to confirm more ideological nominees, even if they ultimately approve them. Thus the votes against the confirmation of Alito despite having a large number of dems break ranks to support cloture (had they closed ranks, the nomination would have been filibustered) are quite logical -- we'll allow Alito but we are quite uncomfortable with anyone further to the right. That strikes me as precisely the right tone for the opposition -- the President gets to nominate someone ideologically compatible but still within the bounds of mainstream jurisprudence (no Borks, no Fortas').
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60, or whatever number the Senate decides to set for cloture, under its own rules. Likewise, withholding of a blue slip is within the rules, and that tool whould also be used by both sides.
"Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment."
Bush???
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I honestly don't know the answer to this -- was Fortas' jurisprudence a problem? Or was the issue with elevating Fortas to CJ more in the vein of ethical lapse?
Really, I'm for anything that makes the nomination process as difficult as possible. Sucks for the judges that have to go through the ringer (but they mostly get a nice reward) but good for the country -- anything to prod the President into nominating moderates.
I seem to remember highly qualified Elena Kagan of Harvard Law School being held up in the Republican-controlled Judicial Committee and never actually getting a floor vote. I don't think either party can truly claim the high ground on this one over the last 14 years. (Hopefully, this thread doesn't break down to apple and orange throwing.)
That said, Obama's potential judicial nominees scare me.
I'm not sure that, for those you are trying to console, that there is a vast gulf between the ideological grounds that you hope the Senate would avoid and the "qualifications and temperament" role you hope the Senate would take up.
To take an issue I personally happen to have a fairly strong stance on, look at firearms. Senator Obama has made it rather clear that he believes a fairly widespread ban on firearms to be lawful and Constitutional. Presenting a judicial nominee that believes the same thing would cast rather bad lights on that individual's temperament, defined as "a person's normal manner of thinking, behaving or reacting" -- managing to read a fairly basic statement to that degree does not make a good lawyer. I'd even argue it reflects poorly on the person's "tendency to become irritable or angry" : the only way to logically hold both the necessary and proper clause while simultaneously believing an ban on the sale of federally transferred firearms with *five miles* of a school or park, or a ban on the private ownership of firearms within privately owned buildings (even by the building's owner) within a six square miles containing a half of a million people, without assuming a rather impressive lack of self-control or ability to control anger within the common populace including the judge himself or herself.
As I said before, Sotomayor and Tatel are both high on the list, very qualified and no more liberal than Roberts &Alito are conservative.
Maybe he would nominate someone to the far left but I can just as well see him nominating a moderate, especially if it's Scalia or Kennedy that retires first.
Um, no.
If "temperment" means an understanding of what it means to be a judge, then all liberal nominees would fail, because they don't have the correct understanding. Their understanding of a judge's role is to impose policy outside of democratic checks, while the correct understanding is to be an umpire and write decisions that are in line with the original understanding of the law or the Constitution.
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How about blue slips and minority objection, no reason needing to be given for objection (other than "concern" and optionally, whatever passes for grounds to object), and everybody can lobby their Senators as they see fit. That's the existing situation as endorsed by Democrats - it should work for Republicans just exactly the same way, or else it isn't fair.
And ideological concerns are no small matter, when a major ideological divide is whether Justices should uphold their oaths of office by enforcing the constitution we have, or violate it by enforcing in it's place the constitution they think we ought to have.
Isn't the conservative view of the judiciary that judges fundamentally violate the very essence of their role when they deviate from the enacted meaning of codified law? If so, how can the right accept this as a legitimate alternative viewpoint?
Granted, the political sphere also has to fraw lines between issues where it is and is not "OK to disagree." Abortion is on one side of that line; suffrage, for example, is on the other...
But please, Clayton and Brett, don't let facts get in the way. And hey, you might get lucky. Perhaps Obama will elect someone for the Supreme Court who is stunningly incompetent, you know, in the mold of Sarah Palin, and then you will have real grounds for fighting such a nomination.
Of course, it would make you look like hypocrites, since lack of experience and incompetence for high levels of office are practically a requirement nowadays, at least for Republicans.
His concern in that paper may have cronyism, but don't think for a moment that Hamilton and the Federalists didn't do their very best to stack the judiciary with judges with their judicial philosophy.
I also agree that a bit of tit-for-tat--particularly given Senator Obama's votes against Roberts and Alito--is a good idea to achieve some sort of balance.
There's 'principled' and then there's 'gullible'. Trust me on this, nobly renouncing tit-for-tat means lots more tat.
Political outmaneuvering by a smart Bush White House (and he got--and took--a mulligan on Harriet Miers).
Given the way the "liberal" hsve been blocking and trying to block conservative judicial nominees, I must say, that I certainly hope so. Sauce for the gander and all.
Great, see how many votes you can get in the Senate for that amendment.
Absolutely. Then again, double points for the Senator if he nominates a left-centrist and diffuses the whole thing.
Or both parties stand together and insist that the President advance mainstream judges?
That would be as nil as getting James Madison or Thomas Jefferson approved by Senate Democrats to sit on the Supreme Court today.
Let's hope to God that an anti-free-speech warmonger like McCain isn't picking Supreme Court justices.
Oh my...
Left-right sniping on this issue is virtually devoid of substance. The justices have a responsibility to enforce the Constitution. The Constitution limits the federal government to a few enumerated roles. Imposing a national socialist retirement plan is not among them. Nor is meddling in the market for medicine. Nor setting a national drinking age. Nor interfering with people's opportunity to spend their own money broadcasting their opinion about political candidates. Nor using taxes to bail out or stand behind profitable firms. Nor any role in subsidizing or regulating education. Etc, etc. Nobody is fit to serve who will not enforce the Constitution, and that means striking down unconstitutional programs and laws.
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The question isn't what to do when there is unanimous agreement. It's how to proceed when faced with concern, or even objection, from one or more senators. I urge the GOP to use Senate rules and tools in exactly the same way the Democrats have used them, without reservation, even when the result is interminable delay and/or "obstruction."
If his administration can't bring itself to do this, then I would expect the Republicans to pretty much shut down judicial nominations. It's always a political risk, but after the stuff I've seen from the Dem side for the past several years, with quality Republican nominees who go nowhere, I think there's more for the Republicans to gain than lose in doing so.
I'll go back to good faith when I see some give on the left. Until then, I have no problem with no one on the bench.
And quite properly: Miers was a hack, and it's disgraceful that Bush wanted to put a hack on the Supreme court. But that's Bush for you: Only doing the (sorta) conservative thing once all alternatives have been exausted.
The filibusters, of course, were at the circuit level and below, not the Supreme court. And I wouldn't support filibustering at any level. As I said, I think Presidents are entitled to timely up/down votes by the ENTIRE Senate for their nominees. What they aren't entitled to is "yes" votes.
It irks me to suggest such, since I want the GOP to be above these tactics, but, in the end, USSC appointments may be the single greatest difference between and a Dem and GOP president.
BTW, and off post, I wonder why MSNBC didn't frame the issue as wondering of the GOP would be as obstructionist as the Democrats have proven to be, instead of "Would there be a Republican filibuster of an Obama nominee — after all the years Republicans spent saying "every nominee deserves get an up-or-down vote”?" You know, like "After all the years of filibuster, will the Dems suddenly demand 'every nominee gets a vote'. "
I don't really wonder at all. It's fairly typical. Dems are cool, Republicans will probably prove to be hypocrites.
I meant to suggest that MSNBC presents the "news" this way, not that I hold with such.
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That was a rhetorical "wonder," I presume.
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Still, to parrot the Democrats, "it's not obstruction when the tactic is provided for in the rules." The Democrats won this one. Nominees aren't entitled to an up or down vote, unless the Senate agrees to give one.
Except for the fact that Bush nominated and the Senate confirmed two fairly conservative (but still, I would argue, mainstream) nominees. And to say the court hasn't swung right in the past 2 decades is dishonest, at best.
jccamp, I highly doubt Reid will insist that every nominee gets an up or down vote. He seems like more of a parliamentarian than that.
So when a Democrat nominates a Justice, that person is probably someone who will, when on the bench, use his or her position to change the existing political rules to ones more favorable to Democratic aims, On the other hand, when a Republican nominates a Justice, that person tends to be someone who will want to sustain the rules, not change them.
The result is that unless the conservatives figure out how to block liberal nominees, the Court drifts leftward toward being a political arm of government, like the Congress or the presidency.
Yes, I'm simplifying, but it is to make the point that neither party really has a choice. Once the Court is understood by either of the parties as just another political institution, both parties have to deal with it that way.
First, the Democrats will accuse Republicans who filibuster as being more partisan than they were, since the apparent "rule" for filibustering lower court judges was that the Democrats on the Judiciary Committee had to be unaninimously opposed to the choice.
If you look at the makeup of the Senate Judiciary Committee, the following Democrats and Republicans serve.
Democrats: Leahy, Kennedy, Biden, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse.
Republicans: Specter, Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, Bronwback, Coburn.
What is noteable, IMHO, is that the most "conservative" member on the Democratic side is Diane Feinstein. As a result, there is a higher likelihood of Judiciary Democrats voting as a bloc than Judiciary Republicans, which includes arguably the Senate's most liberal Republican and two others who can legitimately be called "mavericks": Grassley and Coburn.
I further note that President Bush worked extensively with Senator Feinstein on 9th Circuit picks--and that as a result, the Ninth Circuit has only one vacancy right now. I am unaware if any other Circuit has just one vacancy.
Second, I suspect the problem could be resolved right now if Senators Obama and McCain jointly pledged to support the so-called nuclear option regardless of which was elected President. Of course, judicial selections are not an area where Senator Obama has actually shown any interest in bipartissanship, so I am not holding my breath.
At the 2005 Federalist Society Convention, in a question from the floor to Sen. John Cornyn (R-TX), I proposed increasing the size of the USSC to 27 (I now propose 28 to have a spare). I got a moment of silence, followed by laughter and applause over that one. In a later session, a questioner asked about a USSC comprised of Randy Barnetts, and got an ovation.
Now now envision increasing the USSC to 28 and appointing all libertarians. (I have a little list.) Given what Palin said about the Alaska Constitution being her bible for governing, a President Palin might do it. We can dream, can't we?
I agree with this, although I do not wonder that should Obama be elected, we may see a sea-change on this subject from Senator Reid et al.
And yeah, I don't really wonder at all why MSNBC doesn't mention that both parties may, post election, suddenly discover validity in the other side's pre-election arguments.
Again, what makes you think Obama, having been a Senator during that time, doesn't realize this fact and nominate a center-left candidate that has broad appeal? Same goes for McCain.
For folks like me, that like where the court sits right now, this election is fantastic.
Sorry, don't buy that dream. She seems just as likely to appoint a Bork-esque culture warrior -- someone inimical to the libertarian spirit.
I think you may be correct. A number of senators have taken the long view, in that what you demand and want today may be anathema tomorrow. Demanding or providing votes on every judicial nominee does weaken the Senate's ability to affect the nomination process. Reid is probably within that group with a long view.
But I do presume at least some within the Democratic party will be demanding up-or-down votes on all nominees, assuming an Obama presidency.
I included him by name in that post mainly because I don't care for him all that much. I'll rein in my exuberance a little more in the future.
For folks like me, that like where the court sits right now, this election is fantastic."
I hope he is correct. The USSC seems to be fairly balanced right now. However, the cynic in me wants to make allowance for original sin, so to speak, and suspect neither candidate may be able to restrain the off-center wings of the respective parties and control the process.
We can get a clue from the judicial appointments she made in Alaska. I haven't had a chance to read any of their opinions, but libertarian friends in Alaska seem to like them a lot.
If, on the other hand, the American people elect McCain, than the American people can be understood to at least endorse the McCain threshold for applying ideological tests to nominees. Accordingly, the Senate should confirm any reasonably-qualified nominee.
I agree. However, John Robert's seemed as qualified as anyone I have ever seen be nominated to SCOTUS and still was subject to a sham and demeaning hearin.
Even after Roberts appeared for days in front of those blowhards, sans any notes, he was still not unanimous. I don't think the Republicans make shows of the judicial hearing like the Dem's do.
Just my .02
Wow, you are going to complain about a nominee that was confirmed 72-28 to a position with life tenure because they hurt his feelings during a hearing? Roberts sailed -- his confirmation was assured from the second he was nominated.
The problem is exactly the opposite: that liberal is being called moderate, and moderate is being called conservative. There's a one-way ratchet on the Supreme Court.
Liberal decisions are entrenched to the point where even "conservatives" accept them on stare decisis grounds (Clarence Thomas being the lone exception), while conservative decisions are never granted the same respect. So Breyer is "conservative" (for a Democratic appointee) only in that he doesn't move to the left as fast as justices of the past like Marshall, Scalia is "conservative" only in that he doesn't move to the left at all. But he doesn't move the court to the right, either.
Please! Was that before or after the adoption records of his children were ransacked? Or maybe when Mrs. Alito had to leave the room in tears after her husband was being grilled for what? Being in the Mafia? Being a bigot?
As recent polls discussed on this site show, "an understanding of what it means to be a judge" is ideological. as a result, your post strikes me as inserting ideology into judicial confirmations under the guise of nonpartisanship.
if i'm wrong, what is a non-ideological understanding of what it means to be a judge? and it can't be so broad as to be not useful (e.g. "a judge decides things")
Wisconsin v RTL, Heller, Morrison, Hudson, Stenberg were all moves to the right (all but one good decisions too). It's dishonest to say that the court hasn't moved to the right considerably since Warren.
What is this, the Dr Phil theory of supreme court confirmation proceedings? Alito was confirmed because some dems voted for cloture and again his nomination -- people that opposed him allowed it to happen. As I said before, it's a logical move on the part of the Senate to make it clear that they do not accept nominees more extreme than Alito (who is at the boundary of my comfort level as well).
Since Breyer is probably to the right of Stevens and in the vicinity of Souter, you start to see the Breyer is precisely the kind of Justice that could be appointed by a President of either party. The dead ideological center of the Court (and the country, I would argue) lies somewhere in the Souter-Breyer-Kennedy triangle.
While, I don't think the GOP will have the numbers to filibuster any of his nominees (at least not in the next Senate), and even if they did, they shouldn't, but they should make it their number one priority to make sure that each nominee gets a full airing and is put through the ideological wringer. They need to make sure, especially on the rather egregious Ginsburg clones that Obama would nominate, that the country knows that Obama is nominating left-wing wackos who aren't going to follow the law. Then, they should vote against them. But they shouldn't obstruct the vote, unless the Dems are trying to push thru nominees without sufficient examination, questioning, vetting and debate.
Heller -- assuming that once one gets past all the caveats and concessions by Scalia, it actually has an effect -- certainly moved the law of DC to the right, but it didn't move the Court to the right. (The Court has never -- yes, including Miller -- said that the second amendment was a collective right.)
Wisconsin RTL (not Wisconsin v. RTL) didn't break any new ground; it merely upheld Buckley and declined to extend McConnell. But it didn't even overturn McConnell.
Hudson? Again, it declined to add yet another case to the exclusionary rule, but it didn't move the law to the right.
I have no doubt that if Warren were still Chief Justice, these decisions would have come out much left of where they did, but that's not what I'm contending; indeed, such an argument completely misses the point I was making. I'm not saying that these justices aren't more conservative than Warren; I'm saying that they're starting from a baseline much left of the one Warren faced, so even a small move to the left on any issue puts them even farther left than the Court actually was under Warren, whereas things denominated as moves to the right really aren't.
The only one I'll arguably give you was Morrison -- but what underscores my point there is that it was an isolated case that had precisely no impact on the actual law. There was no "federalism revolution," and no laws are being struck down as a result of Morrison. So a truly "conservative" decision has no impact -- while a liberal decision such as Lawrence v. Texas struck down numerous laws directly and is being built upon by lower courts to strike down even more.
The Senate can start by confirming the many nominations now sitting idle. Sorry to be so juvenile about it, but it would be nice to see the Dems forced to swallow some of their own bad stew they've brewed up over the past 8 years.
There is a long history of appointing anyone qualified, regardless of their views, to the bench.
But I don't see the wisdom in it. Of course we should keep people with bad views--or bad values--off the bench.
It doesn't matter how qualified a nominee is, if they want to remake the Constitution in their own image, they should be kept off the Court.
Y'all who are complaining that the Democratic-controlled Senates stonewalled Republican nominees while Republican-controlled Senates readily approved Democratic nominees are not looking at the facts.
While only two of President Bush's judicial nominees have been defeated in open votes, nearly 60 of President Clinton's judicial nominees were defeated through secret, anonymous holds and other secretive, non-transparent Republican tactics.
And Puh-lease don't pretend that there are any liberals on the Supreme Court. Brennan was a liberal. Douglas was a liberal. T. Marshall was a liberal. That liberal tradition does not exist on the Supreme court anymore.
If, on the other hand, Obama exercised bad judgment on court appointments as a Senator, then his proven bad judgment means he shouldn't be given any deference on his court appointments as President.
The left plays hardball with judicial nominations. For them everything is fair game. Conservatives should keep all options on the table.
The right plays hardball with judicial nominations as well. The sensible thing to do is talk to the opposition to find nominations that don't immediately polarize the Senate.
Well, what about Lynne Steward? She's also committed to Change. Change to the Manhattan skyline. Change to the civil rights of reactionaries.
That's a crock. How soon VCer's forget--it was only last May that Ilya Somin posted the following:
He may or may not be a great intellect, but he certainly doesn't have the temperament to be a Supreme Court Justice. It was a good thing for America that he never made it.
Sasha's point reminds me of the iterated prisoners' dilemma and its many variations.
You probably think it was clever to phrase this so that Bush nominees who were denied any votes at all through "secret, anonymous holds and other secretive, non-transparent Democratic tactics" don't count, but it was actually rather transparent.
Before one can call for a truce and a resolution, one's opponent must at least take one seriously. Saying, in effect, "You can hit me all you want, and I'll never hit back" only works against bullies in dumb after-school specials. Real bullies, when not confronted directly, will just raise the level of their bullying, when they find that their victims don't fight back.
In the short term, sure, we can get some more judges appointed. Big whoop. The politicization of judicial appointments will continue, and worsen, until there's a showdown, and a resolution.
Relying on the better natures of the people in any political movement, particularly the angry American left as it currently seems to exist, is foolhardy at best. (That would be true whichever way the wind blew at a given time, but currently, the left wing seems to have the market cornered on irrational anger and a determination to act on it.)
How often does poor behavior change, when it does not lead to adverse consequences?
Alternately, has there ever been a political party that found benefit by trusting that their opponents would suddenly become more fair than they had been previously?
That dishonest. Between Miller and Heller, the various Courts of Appeal routinely dismissed challenges to gun laws under the 2A with a collective rights theory. For 70 years, the SCOTUS denied cert, effectively upholding that regime -- that was an implicit endorsement even without the court officially holding so in an opinion. See, e.g., Presser v. Illinois, Mosher v. Dayton, United States v. Rybar ...
Plus, if there's one case you have to give me, it's Gonzales v. Carhart. Such a result was unthinkable before Regan and Bush II's nominees.
Nice tautology. The question is what should we do with the non-screwballs.
It *MUST* seriously examine these guys, putting them thru the ringer if needed, and not be a rubber stamp.
However, that said, we should be very careful in not resorting to the same slimeball tactics such as using procedural means to block any votes.
Obama will lose, so the argument is moot. The left certainly won't be swayed by it. So to whom is the argument addressed? And would you advocate it if it were stated as Always play fair no matter the consequences.?
You, Jonathan, are extraordinarily naive. Don't you understand the fallacy of adhering to principle when the other side believes that the ends justify the means? I think not. Would you meekly watch the US becoma a socialist state in the name of principle? Apparently you would, which makes you and your ignorant ilk enablers of the left and members of the Useful Idiots Club.
There is a huge difference between abondoning principle altogether and abandoning the fight. Best learn it, or relegate yourself to the bleachers and keep your useless thoughts to yourself.
Nothing dishonest about it. The "Court", IOW the Supreme court, didn't say it was a collective right. The lower courts took Miller and spent nearly 70 years playing a game of telephone with it. But they were reading into it a 'collective' right view the Supreme court did not endorse.
If the collective-rights theory was wrong, then the Supreme Court violated their own rules by refusing cert.
Sounds par.
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The dissent in Heller played the same transparent dishonesty. Even the majority misconstrued the case as "Miller lost," rather than what the Miller case actually says.
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Miller won below, the District Court held that the NFA was unconstitutional in light of the 2nd amendment. SCOTUS remanded the case for want of a finding that a short barrel shotgun has militia or defensive use. The District Court would have maintained its holding that the NFA was unconstitutional, if Miller wasn't dead, because short barrel shotguns do have militia use.
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If Heller is seen as a "move to the right," I am all the more adamant about using exactly the same tools and tactics of the left, to avoid voting on and/or confirming judges who have adopted the incorrect "common wisdom" about what the Miller case actually says.
The principle to apply is one of equal treatment. Not until the Democrats lead the way on this should the GOP ever be as accomodating to the Dems judicial picks. Dems aren't interested in treating someone fairly; they are about scorched earth, political victories and a judiciary packed with leftwing living Constitutionalists who are destroying the Constitution to further their descent of America into just another European style socialist welfare state. Accomodation is a 2 way street.
In that case, how fairly did Obama treat Roberts and Alito?
You should tell Richard Paez about the lack of Republicans holding up his nominations. He'd be eager to here about it, considering how long he waited for confirmation.
The dems approved Roberts and Alito, Obama should get to nominate liberals of the same caliber -- somewhere in the Breyer-Stevens range.
You can't lay this one on the CAs -- the SCOTUS had ample opportunity to grant cert and didn't. There was no contrary precedent by the Court and 10/13 CAs in agreement.
Ah, sorry Adler, the name's Tucker, not Sucker
Are they even going to have the votes for this?
Democrats are expecting big Senate gains if Obama wins. Toss in the moderate/liberal Republicans (Snowe, Chaffee, Lieberman, etc) and I'm not so sure you could find 40 conservatives willing to roll up their sleeves and put in the hardline work for a fight on this.
I'm not as bothered by Obama's strong left views as I am the possibility that they will go completely unchecked by a beaten-down, left-leaning Congress. Clinton, for example, was handcuffed by a very determined and committed majority opposition. With the exception of Ginsberg and a few token pieces of legislation, his policies, administration and legislation were very limited (both ideologically and quantitatively). The result was something very palatable to the public at large (aside from his sexual indiscretions).
Meanwhile, Bush and his inner cabal were given a blank check by a sympathetic government and naive leaders in the military and corporate world. The resulting mess and approval ratings speak for themselves.
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I can too lay error on the CA's, and I do. Denial of cert doesn't mean that SCOTUS endorses the result below. That the CA's misread Miller is obvious to anybody who actually reads and understands Miller.
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But I also lay error on SCOTUS. All nine justices in Heller got Miller wrong. ALL of them. But the dissent is egregiously wrong by finding only a collective right. I hope the GOP senators are on the ball enough to probe 2nd amendment and takings, for all of the nominees henceforth, and especially nominees that are offered from a president who is a member of the Democratic party.
I have a problem with the sheer unreality of this comment. Republicans were not respectful of Democratic nominees. They blocked as many or more of Clinton's nominees than Democrats have: and more successfuly blocked them than Democrats had. That's because they had more effective tools to block nominees at the time. When they took power, they eliminated those tools, leaving Dems with more visible but less effective tools.
The idea that the Republicans were nice and respectful of Dem nominees until the big bad Dems came along with their brutish ways is a polite fiction for partisan children. One can certainly accuse the Dems of causing the biggest first spark with Bork, and one could argue that Republicans were nicer to Clinton's SC nominees. But by and large, there have been no gentlemen here on either side.
I, for one, welcome a tough nominations process in which nominees are grilled on issues of judicial philosophy and precedent. After all, these people are being given lifetime positions!
But as a legal matter, we are repeatedly told that denial of cert is not to be taken as expressing a position. The Supreme court has never endorsed the collective right view, for all that it callously allowed the lower courts to get away with doing so.
There have to be consequences for the Democrats' actions over the past 8 years. I'd be happy saying that Obama's nominations will go through, but only if he nominates a few of the judges who received the short end of the stick while Bush was president. Compromise is the way to go at it. There IS a debt to be paid.
On Nov. 7, 2006, Sen. Lincoln Chafee (R-RI) was defeated for reelection by Sheldon Whitehouse.
Joseph Lieberman is now officially listed in Senate records as an "Independent Democrat"; he caucuses with Democrats, not Republicans.
I'd say clear out some of Clinton's stalled nominees as well but now they are 8 years older and therefore not a wise choice. After all, if we are going to play straight politics here, no reason to nominate anyone older than 53, right?
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Frist deep sixed a number of nominees who had moved out of Committee, and onto the Senate's Executive Calendar. One day he was saying they deserved up or down votes, and after that, silence and no action. Never suggested going into executive session to vote on them, so no cloture motions, etc.
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I doubt Harry Reid would do the same against an Obama nominee.
Republicans play nice.
Dems play dirty.
So republicans should play nice, to convince the dems not to play dirty, except...
If that would work, then why were dems the first to play dirty? Shouldn't the shining example of their previous niceness have prompted niceness?
Seems to be a thin theory, to me.
I don't think republicans should play dirty, but they should demand strict constitutionalists, period, on the bench. They have a duty to uphold the constitution, and to make sure the appointments will do the same. This arrogance from the bench has to stop. Starting with the end of Kennedy v. LA.
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Lack of guidance? Miller is a short, easy case. There is no principled excuse for it being chronically misconstrued. More like "We can get away with misconstruction, so we will." It goes on to this day, continued misconstruction of Miller, now with reference to Heller to "add heft."
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Absolved of moral responsibility on account of not being called on it. That is utterly unprincipled.
The most you can get from Miller is a test as to which arms are protected, the very fact that they didn't regard Miller's criminal record or lack of military service as relevant made reading a collective right into that ruling a tremendous stretch.
And do you advocate that liberals and Democratic Senators let qualified right-leaning lawyers and judges through without much of a fight, or is that just crazy talk?
I believe I do follow your logic, but the question arises, what happens if one side takes your advice and one side doesn't? (I'm not saying there have been no Republican blocks, but I do assert there have been more Democratic blocks, and more importantly, the Democratic blocks are more likely to continue.) Stephen Covey makes a point, that sometimes gets neglected by fans of win-win thinking, that you can't find win-win scenarios with an opponent who's stuck in win-lose thinking. You can try, but you'll end up on the wrong end of win-lose.
Everybody thinks the Supreme Court should "Uphold the Constitution" but what that might mean is always a matter of judgment.
"Separate but equal" was deemed unconstitutional, ultimately, because our nation tried it for 58 years and it didn't work. Nobody today would want to overturn Brown v. Board of Education, but in 1896, the Supreme Court could not find a basis to deem "Separate but equal" unconstitutional.
Originalism is a crock. The constitution's words remain the same, but it is a vital, living, evolving entity, ever subject to new understanding, which is why the Supremes overturned "Separate but Equal" in 1954.
Disagree, because it is the job of the SCOTUS to keep the circuits in line. Absent any corrective action from above, they were well within their rights to assume that they were in line.
I'll agree that reading a collective-rights out of Miller is a stretch, but I still place the blame solely and squarely with the SCOTUS. To quote the dissent in Ratchford
(my emph)
The obverse side of rule 19(1)(b) (to borrow a rhetorical device from the Chief Justice), is that lack of cert (especially repeatedly) implies that the SCOTUS does not think that there is an important question of federal law and does not think that the lower court has decided a federal question in conflict with precedent.
Numerically speaking, Dems under Bush and Reps under Clinton are roughly comparable. Sorry to spoil you moral outrage.
The hell with that!
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Following your "principle," courts can make cockamamie rulings (deliberate misconstruction) on the theory that if they aren't called on it, the ruling is "in line." I call that utterly unprincipled. Corrupt. Ethically void (as in "empty").
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You'd have an argument about the reasonable assumption if Miller was complicated, or if it's holdings and dicta were spread out among multiple Justices. But Miller is simple, short and direct.
I certainly disagree with the circuits, but there's hardly any evidence that their ruling were deliberate or unprincipled. What possible motive could a conservative 8CA (see, e.g. UNITED STATES of America v. Wilbur HALE, not to be confused with the SCOTUS case of US v. Hale involving a bank robber) have other than following precedent to this best of its ability? Surely these aren't Reinhardt liberals!
Filibusters, though, as their very name indicates, inherently smack of illegitimacy; they're dirty tricks that ought to be engaged in only in extreme circumstances, where the damage being fended off is worse than the moral stain of hijacking. That's why there is no history of Senate minorities successfully filibustering judicial nominees. (Fortas didn't have support from a majority of the Senate, so it wasn't really a filibuster, which by definition is the minority hijacking the Senate from the majority.)
At least, those were the rules that both parties kept, until Chuck Schumer came up with new ones. This was an explicit change in the ground rules, and it was a change for the bad. So, should the situation be reversed, ought the Republicans to go back to the old rules? I say no; they were good rules, but the Democrats threw them overboard, and now it's time to play by the Schumer rules. Perhaps after a few years of that the Democrats will realise what they'd done, and it will be possible to get a mutual agreement to go back to the old rules - with a D guarantee that they will stick to them even when the situation reverses again.
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The more times the error is repeated without being called out, the more valid and morally correct the error becomes.
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No thanks. I'm sticking to my point of view. It is perfectly reasonable for an observer to expect a Court of Appeals to get Miller right, independently of being slapped down by SCOTUS. That 11/13 are scared of gun rights makes 11/13 wrong on Miller. And now 9/9 Justices on SCOTUS too. "Miller was convicted," my ass.
Clever use of "successfully" there. Minority Republicans in 1994 tried to block circuit court nominees via filibuster but were unsuccessful. In the 2000s, minority Dems succeed in the attempt. But that does not make the tactic new.
The point is, neither side can play holier than thou on judicial appointments. So that particular GOP whine of "We play fair but the nasty Dems don't" can stop. It's not productive. And in that it is false and (when repeated despite mounds of evidence to the contrary) dishonest, it further fans partisan flames and makes any settlement even less likely.
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If the nominee can't get that right, then they have no business being a judge in a federal court. And if the nominee HAS construed Miller, I'd reach a "reject" conclusion depending on how the nominee construed the case.
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Although I suspect that the Senate is at least as likely to misconstrue Miller as the Courts are, because they don't want to put the NFA and its progeny at risk of being overturned.
An actual conservative ruling comparable to the Marshall/Brennan/Douglas court's rulings would have struck down all gun laws in the U.S., except perhaps felon-in-possession laws. That's what would have happened if Scalia/Thomas/Alito/Roberts were really as conservative as the hallowed trio was liberal.
Again, that completely misses the point I was making, which was not about whether Reagan's/Bush's nominees wrote/voted for more conservative opinions than Democratic nominees would have done. My point is about the state of the law. Carhart is not more "conservative" than Roe/Casey; it assumes they're valid and follows them. It upheld a law -- against facial challenge only -- which bans no abortions, but only a method of abortion in cases where that method isn't actually needed at all.
You're making my point: a "liberal" ruling -- Roe -- struck down oodles of abortion laws across the U.S. and essentially created a regime of abortion on demand. A "conservative" ruling" -- Carhart -- assumes for the sake of the case that Roe is valid and upholds a law which has only symbolic significance, not moving the law to the right at all.
A major liberal federalism ruling -- Heart of Atlanta -- said that there are no limits on federal power at all; a major conservative federalism ruling -- Morrison, or Lopez -- said that Congress had to recite a few words like "which has an effect on interstate commerce" before exercising its unlimited powers.
It's a one-way ratchet.
And I think you ought to reread your history of 103rd US Congress.
Moreover, since I consistently support limiting the President's prerogative to nominate outside the mainstream, I don't accept the distinction anyway -- 60 votes or find a less polarizing candidate.
Interpretation of law is descriptive, not prescriptive. As it happens, views that I personally disagree with are often institutionalized. Somehow, I cope with the fact that someone, somewhere, could disagree me.
There is another way Miller gets misconstrued. The NFA was a tax statute. The government was asserting a power to make it a crime to possess an object on which a tax had not been paid (unconstitutional), while refusing to accept payment of the tax if it were tendered (voiding the obligation). The Court had to decide whether the weapon in question was tax-exempt, as militia firearms were under the precedent of the Militia Act of 1792. It couldn't just find that anything useful for militia was tax-exempt, because almost anything can be used in militia under some scenario. The Court wanted a closer connection to militia that, say, a pair of combat boots or a canteen. Otherwise it would be creating a precedent that could be used to find all taxes void on everything.
It seems a lot of people miss this argument, including Scalia and many on this forum.
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In 1994, I see cloture vote on Sarokin (85-12, with 3 Democratic senators among the 12 NAY votes).
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There were also cloture votes on the nomination of Ricki R. Tigert to the FDIC (63-32, all opposition from Republicans), on the nomination of Sam Brown to Ambassador (two cloture votes, one at 54 votes, the other at 56), and the nomination of Derek Shearer to be Ambassador to Finland (63-35)
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Well then, it seems settled. Filibustering judicial (and other) nominees has been done in the past by both parties. Democrats expressly state that it is an appropriate tactic. I say "carry on," since the Democrats don't object to nominees being rejected by a minority of the Senate.
Of course Conservatives are going to block Obama's judicial nominations. And we're going to do it in a way that makes what the DIMs did to Bork look like a ladies tea party. It's going to be an all-out, no-restraint bloodbath.
And I'll tell you Libertards and DIMocrats that if you have no stomach for this, then stand on the sidelines and STFU.
Because the chickens are coming home to roost and Conservatives are going to be delivering them in a 45 foot trailer with a Peterbilt semi.
Remember Judge Bork.
Remember Clarence Thomas.
Remember Ruth Bader Ginsberg.
Unleash the dogs of hell.
Remember if McCain is president too and has anything less than a filibuster-proof majority in the Senate (which would be almost certain), he'll have a hard time urging his Senate Republican to establish the precedent that he should have allowed -- i.e. no filibusters of judicial nominees. Or perhaps it cuts the other way? Only Nixon could go to China??
Cooperation now in a position of strength [filibuster], in the hope of reciprocation later is naive. The Democrats would have every reason to promise cooperation later, after all, chances are some of the people who promised won't be there and the newcomers are absolutely not held to a political promise by guys who later lost an election.
So the correct tactic is to complain whenever cooperation is denied, to promise it at a future date under conditions, and to never accept that the conditions for being suckered have been met.
You can't have a consensus on freedom versus socialism, one side has to lose.
And I don't think discussing this in public is clever either. :-D
But in a nation of written laws, is it supposed to be descriptive of practice, or what the laws actually say?
roflmao.
It's descriptive of interpreting the written law in harmony with currently accepted doctrine. Both meaning and precedent are important.
I think it is pretty obvious what they would do, thus Mr. Adler's suggestion is that the Republicans sign a suicide pact.
I reccomend against. D.GOOCH
The fact, which many people here continue to find very inconvenient to their victimology, are that both Roberts and Alito were confirmed, and there was NO obstruction presented by Democrats. Harriet Miers was removed, and she was objected to by both conservative and liberals across the land.
Now, if you want to say that no appointtee to SCOTUS should ever have to suffer having their feelings hurt, that's a whole 'nother issue. But let's save that for McCain's campaign lies, shall we?
Every single Obama nominee should be asked "do you believe the United States Constitution is Living Document?" When they answer Yes, they should be asked "what is the difference between saying that, and saying that it means whatever 5 members of the Supreme Court think they can get away with saying that it means?"
When they can't answer that questions (because there is no difference), they should be turned down.
Proponents of a "Living Constitution" are enemies of the written US Constitution. Those Senators have all sworn an Oath to "Protect the Constitution against all enemies, foreign and domestic." They should uphold their oath, and vote down all Obama's nominees.
Democrat Constitutional "Jurisprudence" is entirely illegitimate. If they want to actually try to push it in an election, they'll lose. There's no reason for the republicans to give them anything on this front.
So, as long as the judges agree, they can't be wrong? That's very convenient for lawyers, I suppose, but it does raise the question of why anybody else should find the outcome legitimate in a case where the lawyers agree to say that the Constitution means something it manifestly doesn't say.
Take Heller: Suppose the Supreme court had decided to go along with the majority of circuits, and announce that the 2nd amendment 'meant' something which would never stand in the way of any gun law, ever. Effectively writing the 2nd amendment out of the Constitution. It seems that by your doctrine they'd be 'correct', since the end result would be all the courts in agreement, and a lot of circuit level precedent would have been retained. But the judiciary would have lost it's legitimacy in the eyes of an awful lot of people, with potentially nasty results down the road.
Can the legal system really get by with such a self-contained notion of what constitutes a correct ruling? "Anything we agree on"?
Now, if you want to objectively claim that this understanding was wrong, I'm very sympathetic (in the case of Miller, I agree wholeheartedly). Ultimately, however, the Constitution is not a self-evident document and many respected legal mind differ as to the scope and breadth of the 2A protection on the RKBA. That disagreement itself proves to me that the phrase "the Constitution means something it manifestly doesn't say" is vacuous.
But what we're talking about here is whether it's permissible for the circuits to anticipate, even reasonably, bad Supreme court precedents. And I would say that,
1. The lower courts are not under any obligation AT ALL to anticipate bad Supreme court precedent, even where they've got pretty strong hints.
2. They ARE under a moral obligation to not create bad precedents themselves.
The Supreme court may bind the lower courts to the mistakes it makes, it does not bind them to the mistakes you could reasonably deduce it would make if given the opportunity. The Supreme court may be able to murder parts of the Constitution, but the blood has to be on it's own hands.
I'll leave this thread only with the belief that, however, mistaken their reasoning, the circuits that interpreted Miller to endorse the (incorrect) collective-rights interpretation did so in good faith. Maybe it's a stretch, but I prefer to be generous in these cases rather than be the first to impute bad motives.
Game theory says the GOP should get the last licks in if they don't want to appear as chumps to the Democrats (serial Prisoner Dilemma - keep quiet for the first round, then always return the previous play of the other prisoner. The GOP should only quickly pass Democrat appointed judges after the Democrats quickly pass GOP judges.)
This isn't a legal argument at all, but it is a hardball political argument.