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Judicial Nomination Filibusters for the NYT, but Not the GOP:

Yesterday's New York Times had a particularly intemperate editorial on the subject of judicial nominations. Though the Times supported Senate Democrats' filibuster against several Bush judicial nominees -- and is still unready to abandon the tool — the Gray Lady's editorialists are apoplectic at the suggestion that Senate Republicans might do the same, even in pursuit of "appropriate" White House consultation on prospective nominees.

The Times still defends those old filibusters, but only against conservative judicial nominees. Resort to the filibuster "can be an appropriate response when it is clear that a particular nominee would be a dangerous addition to the bench," the Times explains. But threatening a filibuster is inappropriate in pursuit of greater consultation.

If anything, the Times has it backwards. I do not believe it is ever appropriate for the Senate to filibuster nominations on ideological grounds, and I have no love of blue slips. If filibusters against nominations are ever appropriate (and I stress the "if") it would be on procedural grounds, such as to ensure the consistent application of Senate rules. I find resort to procedural tactics less objectionable when the aim is to ensure that Senators have adequate time to review a nominee's record than when used to defeat a judicial nominee who enjoys majority support.

The Times' argument is also difficult to square with history. Senate Democrats did not simply filibuster the "least-competent, most radical" Bush nominees. While the filibuster was deployed against my least favorite Bush nominee, some of those Senate Democrats sought to block were among the most impressive and accomplished. Nominees with majority "well qualified" ratings from the ABA were stalled, while those with simply "qualified" ratings (or worse) sailed through. Senate Democrats did not filibuster Miguel Estrada because he was any more conservative or less qualified than other appellate nominees. To the contrary, he was blocked because Senate Democrats feared he might be nominated to the Supreme Court. In other cases, filibusters were explicitly used as payback for GOP failure to move Clinton nominees, consult adequately with Senate Democrats, or respect the dreaded blue slips the Times now decries as "undemocratic." If it was okay for the Senate to filibuster Henry Saad to force the renomination of Helene White, how are the Republicans out of line now?

The Times editorial is also over-the-top in its characterization of Bush nominees now on the bench. "The nation is now saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims." Those last bits are particularly amusing given the Supreme Court's expansive rulings on standing and habeas rights in Massachusetts v. EPA and Boumediene, respectively, not to mention the Wyeth decision handed down last week -- a decision that should help put to rest claims that federal courts exhibit "reflexive deference to corporations."

Setting the merits of individual cases aside, it is hard to argue that the Supreme Court is particularly right wing, as I've discussed at length. It is also hard to take seriously the Times' suggestion that federal courts are "stock[ed]" with "conservative ideologues." President Bush named approximately one-third of the judges now sitting on the federal appellate bench. This is close to what one would expect given his eight years in the Oval Office -- if anything, the proportion of Bush nominees on federal appellate courts is below the norm.

Now the Times calls upon President Obama to "repair the damage" wrought upon our legal system by Bush nominees through the nomination of "highly qualified, progressive-minded judges" who will "counterbalance" the "ideologues who control many appeals courts." The folks at Times Square should take a deep breadth and relax. As I explained here, President Obama is likely to name close to one-third of the federal appellate bench in a single term, all but erasing any purported conservative dominance of the federal courts. Even if President Obama emulates his predecessor by renominating a few Bush nominees, there's little doubt Democratic nominees will constitute a majority of federal appellate judges in 2012.

Finally, I would note that the Times editorial is riddled with inaccuracies and misrepresentations. Ed Whelan details some of them here (see also here).

UPDATE: Ed Whelan has more on what was, and was not, done with blue slips here.

SPO:
What was done to Clinton nominees was payback for what was done to Reagan and Bush 41 nominees. The Dems started this.

And by the way, Clinton deserves some blame here. No one could think that Paez, Ronnie White or Rosemary Barkett were acceptable nominees. White failed the bar on the first try, for Pete's sake.
3.10.2009 11:24pm
Volokh Groupie:
The New York Times is awful. At this point I consider it on part w/the Post (minus the sports section).
3.10.2009 11:31pm
einhverfr (mail) (www):
Personally I have no problem with filibusters on ideological grounds. I think that places more emphasis on consent of the senate and encourages the President to make fewer controversial choices for appellate nominees. The Dems have had their time to use this tool, now it is time for the GOP to consider their ideological rules.
3.10.2009 11:42pm
Sarcastro (www):

The Dems started this....Clinton deserves some blame here.


I tell ya, everything I needed to learn about Congress I learned in preschool!

Or was that about the Internet...
3.10.2009 11:43pm
Matthew K:
Rebuttals to Whelan:


3.10.2009 11:59pm
Matthew K:
3.11.2009 12:03am
Sarcastro (www):
Matthew K is right. Over the course of 45 minutes since the OP, there has been 1 post blaming Clinton, 1 post dissing on the Times, 1 academic opinion, and 1 nihilistic attempt at snark.

Not one person bothered to rebut the thing linked at the end of a 700+ word post in all that time between 11:12 and midnight!

That's proof enough for anyone!
3.11.2009 12:09am
Volokh Groupie:
@Matthew K:

Your Benen link has a little url problem (deleting the last letter gets you to the article) and is essentially a rehash of the RWW article.

Whelan has a response to the RWW article Whelan Response

The inability of Kyle to pick up on the reference to the blue slip is awful. In any event, neither really broach the main point regarding the use of the filibuster itself and both completely ignore that any claim of hypocrisy on republicans part (which is going to be a given) is incredibly ironic considering the hypocrisy of the piece itself.

By the way Matthew, neither you or the Times will be able to come to terms with their position on blue slips and the treatment of Henry Saad.
3.11.2009 12:12am
Sarcastro (www):
[Oops! Sorry, I thought that was sarcasm Matthew K and made fun of you for jumping the gun. Never mind then.]
3.11.2009 12:13am
Volokh Groupie:
Hilarious to see sarcastro pointing out snark. When have you ever taken a second to stop your gotcha daily show inspired snark to actually engage a point substantively?

In any event, the reason why you don't see a long winded argument from commentators regarding the hypocrisy of the editorial is that this issue has been discussed ad nauseum for the past couple, is picked apart in the actual post and is eviscerated in the Whelan article. The RWW article is too stupid to even understand a reference to blue slips and the WM article is a rehash. And by the way, my Henry Saad reference also has something to do w/the notion that blue slips were only used on Keisler (though people who followed this for longer than a year knew this).
3.11.2009 12:17am
Volokh Groupie:
Don't worry at falsely ripping on Matthew K...its just typical of your snark, you know...the same thing that you frown upon in this thread.
3.11.2009 12:18am
Anon21:
J. Adler:
Those last bits are particularly amusing given the Supreme Court's expansive rulings on standing and habeas rights in Massachusetts v. EPA and Boumediene, respectively, not to mention the Wyeth decision handed down last week -- a decision that should help put to rest claims that federal courts exhibit "reflexive deference to corporations."

But in both Massachusetts and Boumediene, the decisions came over the dissents of the two Bush 43 appointees. So I'm not entirely sure how this undercuts the Times' point.

As to the broader subject, I think commentators on the left are probably getting unduly exercised about this issue, at least right now. It now looks like Al Franken will be seated sometime in April, leaving the Democrats a single vote shy of cloture for most routine (party-line) matters, a category into which most judicial nominations fall. Do we really think the Democrats are going to have a hard time poaching that one vote for essentially any nominee Pres. Obama cares to send them? I would guess that for the next two, and possibly the next four, years, the filibuster won't be a major factor in determining the fate of judicial nominees.
3.11.2009 12:21am
Volokh Groupie:
and Kennedy is a Reagan appointee...i think the larger point was that its hard to insist that the nation is so 'saddled' w/right wing ideologues when you have such prominent examples that such a direction clearly hadn't decided the outcome in those cases

On your second point I tend to agree with you. With the exception of some of the more susceptible/blue dog-ish senators like a Tester or Webb I doubt the dems will have trouble keeping their senators in check and between Collins/Snowe/Specter they can probably pick up the extra vote. Of course you're assuming that most of those on either side have the integrity to maintain the same position they had when the fight first came up. Republicans who ardently believed that the president should be given great deference in judicial nominations will now support judicial filibuster and democrats who though advise and consent covered filibusters will now claim such a tool is being perverted.
3.11.2009 12:27am
second history:
I agree with einhverfr. There is no difference between nominations (of any kind) and any other political issue. I don't see why ideological grounds are any different than any other reason for opposing a nominee.

The Democrats have three alternatives:

1. Impose the nuclear option and change the cloture rule (declare the 60-vote threshold for cloture unconstitu- tional, either for cloture in general, or only as it applied to Senate consideration of presidential nominations, or perhaps a subset of such nominations such as of federal judges.)

2. Strictly enforce the Two Speech rule, limiting each Senator to two speeches each, and once debate has ended, vote on the nomination.

3. Force opponents to literally talk a nomination to death, bringing back the old filibuster tradition. All other business would be halted until the nomination was resolved.

I hope the Democrats do something to shake things up in the Senate--it will be fun to watch.
3.11.2009 12:33am
Sarcastro (www):
[Believe it or now, I somehow manage to be both snarky and substantive at times! here is a recent example.]
3.11.2009 12:49am
Dave N (mail):
Something I noted during the Bush filibuster wars is that the Democrats claimed they were being consistent. The only ones they filibustered were those who did had zero Democratic votes in the Senate Judiciary Committee.

I find this interesting because the Democratic Caucus has been very deliberate in only having liberals on the committee. For example, Joe Lieberman, a former state attorney general, has never been a member, nor have Evan Bayh, a former Governor, or either of the Nelsons (lawyers all).

The Republicans, on the other hand, have typically had at least one fairly liberal member of their caucus as a member of the committee, in this case Arlen Specter--and before him Mac Mathias of Maryland.

As a side note, the Bush White House apparently worked with Diane Feinstein to fill 9th Circuit vacancies, and as a result there is only one open seat on that court.

I stand by my position on judicial filibusters (I am against them)--but I do find the NYT's hypocrisy amusing.
3.11.2009 1:47am
Casper the Friendly Guest (mail):
I don't think the Times critique is over the top.

Let's not forget that there is life beyond the Supreme Court, and plenty of important decisions have been issued by courts that are heavily weighted toward Bush 43 appointees. For example, the 8th circuit is now almost entirely Bush 41 and 43, and their recent track record has been awful on civil rights and women's rights.

Then there is the disturbing trend of using en banc rehearing as a tool for reversing decisions the conservative majority doesn't like (as opposed to en banc rehearings that establish a new point of law). The Sixth Circuit took this to a new level in their recent string of 8-7 habeas en banc reversals, and the Ninth has also racheted up the en bancs. There is a strong case to be made that these en banc reversals (or, in the case of the randomly selected Ninth Circuit en banc panels, attempted reversals) represent the new conservative judges' effort to flex their muscles in an unprecedented manner.

And there is even life beyond the appellate courts. There are several Bush 43 district judges who could use a remedial lesson on the Seventh Amendment right to a jury trial. One example that comes to mind is Judge Sam der-Yeghiayan, who had to be told repeatedly by the Seventh Circuit that summary judgment is not in fact secret code for bench trial.

All in all, there is a strong case to be made that the past eight years has packed the courts with hard-right ideologues who push their agenda at every opportunity. Your quibble about the Supreme Court decisions only reinforces the point, as all three cases involve strenuous dissents from Roberts and Alito. In fact, the Bush 43 pair was right of Thomas in Wyeth.
3.11.2009 3:15am
Vermando (mail) (www):
Agree with you overall, but not sure you can claim Boumediene in support of what you're saying - that Bush's appointees have expanded access to the courts - considering how his appointees actually voted in that case. Like you - and I suspect the Times - I also don't have a shred of data on how his appointees are ruling in the circuit courts, but the example you cite does not support your point.
3.11.2009 6:22am
MJH21 (mail):
I've been consistently opposed to the filibuster as undemocratic and obstructionist - same for the blue slip policy. As a conservative, I think that the Republicans should take the high road and simply vote against nominees they oppose - on whatever basis - an not resort to these kinds of tactics. If the President has the votes for his nominees - they should be confirmed.

But here's the thing: as many of my colleagues have pointed out - and the NYT amnesia/hypocrisy illustrates - it is naive to think that the Dems would ever abandon obstructionism of judicial nominees. Plus, I don't see any evidence that they ever pay a substantial political price (other than firing up conservatives) for the obstruction. Dems fight dirtier (Bork, Anita Hill, the filibusters of Pres. Bush's court of appeal nominees) than Republicans on the confirmation issue, with what almost amounts to impunity.

It makes it difficult to try and hold to the principles position that the Senate should give an up or down vote to a President's nominees.
3.11.2009 8:40am
cboldt (mail):
-- Do we really think the Democrats are going to have a hard time poaching that one vote for essentially any nominee Pres. Obama cares to send them? --
.
Historically, the GOP Senators appear reluctant to railroad judicial nominees, at least compared with the Democratic party. Compare the vote confirming Justice Ginsburg with the votes confirming Justices Roberts and Alito, for example.
.
I opine that the GOP should be just as vigorous as the DEMs in fabricating grounds for objection and exercising procedural devices to block appointments. "Nice guys finish last." Which is why I think the GOP will provide more than enough crossover votes to confirm just about any nominee that Obama wishes to appoint.
3.11.2009 8:41am
OSU2L (mail):
I'd like the NY Times to explain the filibuster of Miguel Estrada...why was that one ok again? Oh yeah---because he is a hispanic man with a compelling life story.
3.11.2009 8:44am
keypusher64 (mail):
Sarcastro (www):
[Oops! Sorry, I thought that was sarcasm Matthew K and made fun of you for jumping the gun. Never mind then.]

God, your shtick is dull. Don't you ever get sick of yourself?
3.11.2009 9:41am
Kevin P. (mail):
Sarcastro,

Your routine was mildly amusing in the beginning.

I gotta tell you that it has long since become boring and kinda lame, actually.

Feel free to do whatever floats your boat, but you're likely just amusing yourself at this point.
3.11.2009 10:26am
Bored Lawyer:
The New York Times editorial page has become a joke, and this editorial is just the latest example of same. The real principle of the position they espouse is:


Filibustering is good when it helps my position, it's bad when it helps the other side's position.



Everything else is nothing but pompous rhetoric which any bright high school student can see through.


3.11.2009 10:51am
frankcross (mail):
The NYT editorial is horribly inconsistent. But so are Republicans. Ed Whelan says that when Hatch changed blue slip procedures, the Dems filibustered. Republicans were outraged, argued that it was unconstitutional. I'm not sure if Ed Whelan took this position, but it was widespread. Now, the Republicans are apparently saying that if the blue slip procedures are changed, they will filibuster. The same approach deemed outrageous
3.11.2009 10:54am
krs:
Finally, I would note that the Times editorial is riddled with inaccuracies and misrepresentations

I think all of the fish in the barrel have stopped moving, so there's no need to reload.
3.11.2009 11:02am
Randy R. (mail):
Hey, not even John Stewart hits a home run every day. We still love you, Sarcastro!
3.11.2009 11:30am
RPT (mail):
"SPO:

And by the way, Clinton deserves some blame here. No one could think that Paez, Ronnie White or Rosemary Barkett were acceptable nominees. White failed the bar on the first try, for Pete's sake."

What's your problem with Paez? He was a pretty good trial judge here. And Barkett?
3.11.2009 12:14pm
Curmudgeonly Ex-Clerk (www):
Caspar wrote:
Then there is the disturbing trend of using en banc rehearing as a tool for reversing decisions the conservative majority doesn't like (as opposed to en banc rehearings that establish a new point of law). . . .
You misstate the standard for granting en banc review. In relevant part, Rule 35 of the Federal Rules of Appellate Procedure ("En Banc Determination") states:
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or

(2) the proceeding involves a question of exceptional importance.
3.11.2009 12:18pm
rick.felt:
The New York Times editorial page has become a joke, and this editorial is just the latest example of same. The real principle of the position they espouse is: "Filibustering is good when it helps my position, it's bad when it helps the other side's position."

Just as someone who agrees with the Times is "principled," whereas someone who disagrees is an "ideologue."

Hey, not even John Stewart hits a home run every day. We still love you, Sarcastro!

I imagine that if we graphed your perception of the frequency of John Stewart home runs as a function of the frequency of jokes about Obama, we would see an inverse relationship. Just a guess.
3.11.2009 12:18pm
Nunzio:
I always that that New York Times v. Sullivan was a pro-corporate defendant decision. What's wrong with holding news organizations to a negligence standard in the case of public figures?

The law even provides strict liability for those hurt by products. Why not strict liability for those defamed by the NYT's unreasonably dangerous product.
3.11.2009 2:30pm
keypusher64 (mail):
Randy R. :
Hey, not even John Stewart hits a home run every day. We still love you, Sarcastro!

Why encourage his lame act? Would you laugh if someone told you the same joke 30 times a day?
3.11.2009 2:38pm
Bob from Ohio (mail):

All in all, there is a strong case to be made that the past eight years has packed the courts with hard-right ideologues who push their agenda at every opportunity.


And the NYT is calling on O to "pack the courts with hard-left ideologues who push their agenda at every opportunity". So what.

That's ok, that is one of the things presidents get to do. "Pack" the courts by filling vacancies.

The effect is overrated though. You need an uninterrupted string of presidents of one party to really "pack" the courts. 16 years at least.

That has not happened since FDR/Truman. (Before that, you have to go back to McKinely-Taft. Before that Lincoln-Arthur, I think.)

We just don't give one party the time to "pack" the courts, fiery language on either side notwithstanding.

(And the filibsuster still stinks.)
3.11.2009 3:06pm
NickM (mail) (www):
The New York Times has become a throwback to the 19th century, when newspapers were openly allied with one political party.

Nick
3.11.2009 3:30pm
Bored Lawyer:

The New York Times has become a throwback to the 19th century, when newspapers were openly allied with one political party.


The key difference between now and then is the word "openly."

The editors of the NY Times will solemnly tell you that they are balanced, fair and non-partisan.
3.11.2009 3:48pm
Putting Two and Two...:
If you don't like Sarcastro's humor, confine your reading of his posts to those with brackets [ ], something I suppose one would have noticed if one actually read his posts.
3.11.2009 4:22pm
Elmer_Stoup:
Jonathan Tobin points out in Commentary Contentions that the Times flipflops their position whenever the Democrats regain control of the White House. When Republicans control the WH, the Times loves filibusters.
3.11.2009 6:03pm
einhverfr (mail) (www):
Just to be clear WHY I think ideology is a reasonable basis for filibuster.

Typically most people think of "ideology" in terms of political ideology. "Will this judge want to weaken or overturn Roe v. Wade?" However, this is never the question, or at least it shouldn't be the ideological question that we need to ask.

It is tempting to think of the law and the Constitution as having objective meanings which are merely enforced by the courts. Most people tend to think that. However epistemologically that doesn't actually work. When anyone (lawyer, judge, or layman) reads a legal document there are certain elements which can be widely pointed to and acknowledged as reasonably objective, but there are many more elements where the understandings of the parties will be subtly different. Our basic ideology concerning what the law is will inform our understanding as much as the words on the page. Furthermore, for words which are not hyperdefined (and in particular when we are seeking a plain reading), this latitude can be quite a bit greater.

Now, the question here then becomes WHO decides whether a judge's approach to the law qualifies him or her to take a seat at the bench? Is it the political party which always has a political axe to grind, and especially when that party controls both the presidency (which makes the appointment) and a bare majority of the Senate (which confirms)? Or should there be a greater bipartisan role, and should the judges be appointed because there is widespread respect for their ability to judge the law?

If judicial filibusters are off the table, I would be concerned that we would see an idiological shift away from the center and towards more polarizing nominees as a way to curry favor from the fringes of party support. As it is, the parties rarely have a mandate sufficient to do this without facing a filibuster.

BTW, I wrote to my senators urging them to support Roberts. I wrote again when Alito was nominated urging them to oppose him because I felt that Alito would place too little emphasis on precedent, while I felt Roberts was more balanced.

The question is: do we want a court system where we have big ideological spreads between judges (and at best may provide a more diverse set of voices, but may be subject to more rapid changes)? Or do we want a court system where most candidates cluster more closely around a common area, and where we have more stability? I would choose the latter.
3.11.2009 7:14pm
keypusher64 (mail):
Putting Two and Two...:
If you don't like Sarcastro's humor, confine your reading of his posts to those with brackets [ ], something I suppose one would have noticed if one actually read his posts.

It's Sarcastro's writing I don't like, bracketed or not. As for humor, I haven't noticed any. If you have, you must be very easily entertained.
3.12.2009 10:37am
LM (mail):
Kevin P.:

[To Sarcastro:] Feel free to do whatever floats your boat, but you're likely just amusing yourself at this point.

Nope.


keypusher64:

It's Sarcastro's writing I don't like, bracketed or not. As for humor, I haven't noticed any. If you have, you must be very easily entertained.

Since there are no other possible explanations, I guess you must be right.
3.12.2009 7:57pm

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