Tuesday, May 24, 2005

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You can filibuster all you want right here

I haven't blogged about the whole filibuster controversy -- constitutional issues aside, to me it was just a giant distraction from things like, oh, I don't know, getting the federal budget under control.

However, now that it's apparently been settled, I am amused to see the gnashing of teeth on both sides of the aisle.

From the National Review's Quin Hillyer:

Conservatives examining last night's Senate deal on judicial nominees should see it as not a compromise but, as a capitulation. It does not save the stature of the Senate, but confirms its reputation as a den of mutual back-scratchers willing to throw principle out the window so their own reputations for wisdom and statesmanship can remain intact.

The Center for American Progress' John Podesta:

This victory comes at a heavy price: the near-certain confirmation of at least three nominees whose contempt for constitutional liberties and disregard of precedent make them manifestly unworthy of judicial office.

Actually, that's not fair to Podesta, who opens up his statement by praising the 14 senators who crafted the compromise. Go see Jeffrey Dubner at Tapped for a more visceral reaction.

In the spirit of making only a few good predictions, here's the only one I'm willing to make: the big loser was Bill Frist. Conservatives are pissed at him because he didn't get all the judges past the filibuster. Moderates are pissed at him for pushing the nuclear option in the first place.

Comment away on the political and institutional implications.

posted by Dan on 05.24.05 at 11:17 AM


All the right people are pissed off, that must be a good thing.

This worked out (so far anyway) as well as it was likely to. I dont think the hard core republicans realized or cared that they were going to seem like the bullies in this one. Now if Democrats decide to fillibuster a SC nominee, they can enact the nuclear option with political cover. I get the feeling the main reason the right is angry is ego, they really wanted to punish the democrats more than see these honestly not that significant list of judges get through. They wanted blood and to beat the dems down. That is shortsighted and foolish.

posted by: Mark Buehner on 05.24.05 at 11:17 AM [permalink]

As a Democrat, I'm pretty happy with this compromise. Don't get me wrong: I don't like the judges that will be confirmed. But I wasn't expecting to get everything I wanted (if I'm ever getting everything I want, something has gone horribly wrong with our political system). We got to knock out a couple of judges we didn't like, and preserved the filibuster; the Republicans got to get an up-or-down vote on a few of the judges they did like, and got to preserve the filibuster (which is good for them, whether or not all of them know it). Plus, I agree that if the extremists on both sides are angry, it must've been right.

On the other hand, I disagree with the previous poster that the Republicans will be able to use the nuclear option when it comes to the Supreme Court nominee. Here's why: the one appointment where I think the Democrats can truly convince the public the filibuster is a legitimate tool to use is an appointment to the Supreme Court; it's the most important position in the judicial branch, and it's for a lifetime, so it's darned important that the minority has a say in it. I think it's much, much harder to convince the public that the filibuster is a legitimate tool to use against other court nominees. Thus, I think if the Republicans wanted to get rid of the filibuster, this was their chance, not during the Supreme Court nomination; trying to get rid of a tool when it seems legitimate to the public at large is much more difficult politically. I'm hoping, however, that the Administration will break precedent and find someone who is acceptable to both sides (and there are plenty of conservative judges the Democrats would accept).

posted by: Ben Bartlett on 05.24.05 at 11:17 AM [permalink]

"I'm hoping, however, that the Administration will break precedent and find someone who is acceptable to both sides (and there are plenty of conservative judges the Democrats would accept)."

I dont know that i agree with this. There is no way a Scalia or Thomas would pass muster with this crowd, and those are the presidents idea of good justices. Sure, another Kennedy or Bremer would be welcomed by democrats, because essentially they are democrats. That is hardly a fair threshold for a Republican president to meet. Can a conservative justice make it into the supreme court? Im not sure, but in the end I think this compromise helps the possibility. It's possible, if still not likely, that the democrats who signed it will be amendable to a well qualified conservative without the baggage some of these judges had. The problem is i dont know if you can find a judge in America that you cant slime with some obscure quote or ruling and make them 'contraversial'. Rinse and repeat.
I dont think the nuclear option has seen its last days. If Bush puts forward yet another judge and magically he or she is yet again 'extremist', people will start catching on that anyone right of Ginsberg is going to be judged extremist. Add that into the plausible argument that democrats have broken the agreement and Frist could still get his nuke. I dont like it but its the most likely scenario in my mind.

posted by: Mark Buehner on 05.24.05 at 11:17 AM [permalink]

I think a conservative judge can make it. You can argue whether Bush's "controversial" nominees are too conservative or not, but the point is they were already considered controversial.

Remember, most of these aren't nominees, they're RE-nominees. The opposition fought them tooth & nail once already. Bush didn't moderate after that; doubtful he will next time either. This deal is unlikely to hold up if the next nominee is considered similarly controversial.

I agree with MB about the "punishment" intentions held by the GOP over this debate. The DFL arguably abused the filibuster last year over less controversial nominees.

posted by: wishIwuz2 on 05.24.05 at 11:17 AM [permalink]

Step 2 or 3 in Operation 'Rid the Senate of the Filibuster' is now complete. Personally, I'm just waiting for Step The Last, which I think is inevitable. And, no, I don't think either side of "The World's Greatest Deliberative Body" (sic) wants to 'Rid the Senate of the Filibuster,' but I think that's the path we're on, and I welcome it.

posted by: Tom on 05.24.05 at 11:17 AM [permalink]

I do believe that the GOP has been furious at the DEMS, and has been raising the stakes month by month, especially after the shoddy election rhetoric of the DEMS, and the continued denigration of Bush afterwards, not to mention the DEMS blocking actions over the last two years. This is assuredly a truce that might hold up till the SC nominations come up, or the gang-of-fourteen falls apart.

posted by: mannning on 05.24.05 at 11:17 AM [permalink]

My intial impression is that this is an absolute diaster for the Democrats and the country. The issue with the judges as codified by Owen and Brown is not the attack on "culture wars"(abortion, homsexuality, the flag) but the attacks on the social/economic fabric of the country. For better or worse economic enterprises are forced by law to honor codes of behavior towards people and the environment. Many of these have been codified under legal statues involving interstate commerce and privacy interpetations. While the latter is often used to attack homosexuals in their own homes and abortion the former is more important in terms of recognizing the environment, labor laws and contracts. Owens and Brown have been in the forefront of attacking labor laws and workers rights. Regardless of how far these laws have swung out of balance between labor and employer the solution is not to end the laws but to amend them. Owens and Brown are notorious for ending it.(This from the tipping point sorry I can"t edit this properly):

I have been licensed to practice law in Texas since 1961. During that period we have seen the complete deterioration of the 5th Circuit in New Orleans from a beacon of reason during the civil rights battles (of course it then included more States including Alabama) to the a rubber stamp right-wing caricature of its former stature.

The court is particularly bad in precisely the areas in which Priscilla Owen is awful. Sure she is terrible on abortion issues. I think the other important areas of her reactionary views such as employee rights, civil rights, torts etc. are the ones she will do the most damage on. That is because most of those sorts of cases end at the Circuit Court level. Most abortion issues do make it to the Supreme Court, so the damage she could do on that issue is limited.

Here is my compromise, as much as it pains me: Let Owens go through. It will not make the 5th appreciably worse; the only more retrograde Circuit is the 4th. I know it will further imbalance the 5th and violate the dictum laid down by Sen. Schumer. The way I see it is that the 5th is a lost cause or sacrifice area already and for the foreseeable future. But, the DC Circuit to which Judge Brown has been nominated is both more important and more closely divided. Brown is so far out of the mainstream she almost makes Owens look moderate. Brown must be stopped. As must Myers. We need to preserve the independence of other Circuits such as the 9th and reluctantly let the 5th and 4th go even further, if such is possible, to the dark side. We have to depend on the fact that conflicts between circuits are often taken up by the Supreme Court.

Actually I do not think Frist can win a vote on the nuclear option. When crunch time comes I believe just enough Republicans will decide against violating both the rules of the Senate and permanently weakening the Senate vis a vis the Executive.

This is the diaster confronting the country i.e. most people whom work for an employer.

The diaster for the Democrats is there is absolutely nothing to stop Bush and Frist from bringing up anybody else they want as judges; which means more people like Owens and Brown. The judges have become the key to change in this country and in giving up the judicary because of life time appointments the Democrats have conceded any ground whereby they can argue against the Republicans. The Republicans and the Democrats have recognized no matter how they hide legislation it can be challenged. As a result no one can really, especially in our interest group driven electorate, can change things significantly(The Republicans are really close). When judges act few notice it and changes can come only through legislation. So even if the Democrats regain control of the legislative process, time alone keeps them from changing judges rulings by legislation

posted by: Robert M on 05.24.05 at 11:17 AM [permalink]

I actually don't think it will make all that much difference as far as the Supreme Court is concerned. Bush is unlikely to nominate someone who is sufficently Neanderthal to trigger the "extreme circumstances" of the agreement just reached. Yet there are plenty of conservative justices out there who are well qualified but whose views and philosophy place them outside or just on the edge of the mainstream.

Democrats will be left with the option of filibustering just because of disagreements with philosophy. And if it comes to that, they won't have the votes to sustain the filibuster.

Bottom line: the next SC justice will be a conservative who will rule in predictably conservative ways. The real explosion will come when Bush nominates a judge to replace a liberal like John Paul Stevens, who is like 85 or something. Replacing someone like Rehnquist won't make that much difference.

posted by: Brad Pickar on 05.24.05 at 11:17 AM [permalink]

The filibuster "deal" has created another instance of ankle-biting conservatives getting hysterical because they can. Not only are they silly, but their threats of "Not One More Dime!" are getting more and more empty.

This is the right-wing version of the ritual denunciations so common on the left.

Ankle-biting conservatives don't know the difference between winnng and losing, between what's important and what isn't, and most importantly when to shut up and wait for a situation to develop.

Instead they foam at the mouth immediately upon seeing something they suspect they might not like, and turn themselves into jokes.

They're a buncha losers who can be easily manipulated by real politicians.


posted by: Tom Holsinger on 05.24.05 at 11:17 AM [permalink]

IMO this is pretty much the end of Democratic filibusters. Frist has said that he'll seek a rules change the very next time a nominee is filibustered and cloture fails.

The Democratic Senators who signed this "agreement" will face this situation again if the other Democratic Senators filibuster another judicial nominee. And we know who blinks.

Caving in now makes it much easier to do so again. And again and again.

Majority Leader Frist can't get a vote on changing the rules until there is both a filibuster and an unsuccessful cloture vote. The only way the wobbly Democrats here can avoid this situation is to vote for cloture on every filibuster.

And they're a little bit pregnant now.

posted by: Tom Holsinger on 05.24.05 at 11:17 AM [permalink]

Implications and repercussions.... let's see.

First, the Great Healer has taken one in the back. I don't know if it's unprecedented for a Majority Leader to stake out a position the way Sen. Frist did and just get bypassed the way he was yesterday. But it isn't SOP for Senate Majority Leaders, be they Democrats like Byrd or Republicans like Baker, Dole or even Trent Lott. Frist, following the example of recent Democratic Presidential candidates, was out to let key interest groups know that he is theirs completely; his problem is that GOP activists don't just want someone who will stand up for them and against the Democrats, but someone who appears as a strong leader. Frist right now looks weak and ineffectual.

Second, the Senate agreement contains stronger incentives against overuse of filibusters than most commenters think. Everyone in the Senate knows that Democratic Senators don't decide on their own which nominations need to be blocked. Liberal interest groups do that, and Senate Democrats take direction from them. Not all Senate Democrats and especially not Robert Byrd are really happy about this. The threat of a filibuster on nominations has been effective up to now because the Democratic caucus has lined up unanimously behind it. Unless President Bush sends up someone really outrageous, that unanimity will now be more difficult to achieve.

Third, a caveat to the last point. Another thing Byrd -- and he is not the only Senator to feel this way -- intensely dislikes is President Bush's disinterest in consulting with Senators before making judicial nominations. This dislike is reflected in the wording of the agreement memorandum, and could very easily trigger another filibuster if Bush insists on making important nominations without consulting key Senators (which Senators are key will depend on what the nomination is for).

So, basically, Democrats have reason to think that future filibusters will be hard to sustain unless they involve a nominee everyone -- not just Nan Aron and the NAACP, but the Democratic Senators in the group of 14 -- agrees is really bad, or unless President Bush shows he is spoiling for a finish fight by sending up someone without prior consultation. Republicans have reason to doubt that if Bush does this that they can win a "nuclear option" vote.

Finally, how does this effect the filling of the next Supreme Court vacancy? There are too many variables for me to predict; I really have no idea. Having said that, my read on Bush is that for such an important appointment he will look less for a specific ideological profile than for a nominee he knows personally. His choice will probably be quite conservative, but it will not be someone with whom Bush is not personally comfortable. This rules out the majority of conservative judges and lawyers, the ones Bush does not know.

posted by: Zathras on 05.24.05 at 11:17 AM [permalink]

Doesn't this give the GOP the 2 things they wanted: 1.) a stop to the filibuster for now, and 2.) a green light for exactly the SCOTUS candidate they wanted all along - specifically Brown or Owen?

If the DFL agrees to a vote on these two this time, what possible "extraordinary circumstance" could they sell later if one is nominated to the big Court? Sure, it's a higher court, but wouldn't their objection need to be based on a much more fundamentally different point?

posted by: wishIwuz2 on 05.24.05 at 11:17 AM [permalink]

I personally think that the Democrats should have staken a different position --- it would agree to an end of judicial filibusters if the next 60 court vacancies were filled by judges that Clinton had nominated, but that the GOP denied a vote on.

This would have highlighted the complete hypocrisy of the GOP on presidential perogatives when it came to the courts.....

posted by: p.lukasiak on 05.24.05 at 11:17 AM [permalink]

Heh. Interesting but not quite comparable. Those nominees never had the votes to be confirmed and most of them were put in in the last few months of Clintons second term when he was handing out positions and pardons like candy. If they would have been voted on they would have lost, that can hardly be described as an attack on the democratic process.

posted by: Mark Buehner on 05.24.05 at 11:17 AM [permalink]

The deal simply puts off the battle until another day. The only truly reliable solution will be a Constitutional Amendment that replaces the ambiguous "advice and consent" language with some more defined process. The founders debated this issue extensively during the Constitutional Convention (see Madison's notes for July)and settled on language taken from the Massachusetts state constitution of 1780--in my opinion only because it was an acceptable compromise that ended the debate. Maybe it's time to reopen the debate?

I like some formal process that ensures the Senate gives advice to the President as part of the nomination process, that ensures a timely vote, and that reuires a supermajority in the Senate to approve the final choice. I think this would help ensure more moderate justices, which in the long run makes me happy. Others may prefer something different--but let's at least make the Constitution clear about what the process will be rather than leaving it to "good faith" agreements that have no force in law.

posted by: Rob Lewis on 05.24.05 at 11:17 AM [permalink]


If politically impossible hypothetical Constitutional amendments are on the table, let's talk about the following solutions to Senatorial arrogance and abuse of power:

1) Shift the advise & consent duties of the Senate (appointments, treaties, everything) to the House of Representatives. Permanently.

2) A majority of a quorum shall prevail on any vote unless otherwise specified in the Constitution. Permanent change.

3) The Rules of each body of Congress shall be enacted only by approval of both Houses and approved by the President subject to the rules for normal legislation. Permanent change.

4) Senators may serve only one six-year term or any fraction thereof. Expires forty years after enactment.

5) No legislation may be initiated by the Senate. Expires twenty-five years after enactment.

6) No amendments to legislation may be proposed by the Senate. Expires twelve years after enactment.

Senators are generally arrogant, conceited, pompus jerks who act as though they are truly superior to ordinary Americans. But they aren't. They are in great need of a reminder of how much such behavior endears them to people.

posted by: Tom Holsinger on 05.24.05 at 11:17 AM [permalink]

Tom . . . are constitutional amendments really politically impossible? Seems like the Republicans propose them all the time . . . and even if they don't get ratified, they help advance issues and make the Republicans look pro-active. This might be a chance for Democrats to show some initiative (but I wouldn't hold my breath).

I'm not sure which party benefits more from a filibuster: I do think it generally helps the Republicans and conservatives more by slowing change, but currently it would certainly be a boon to Democrats and liberals. I don't really care, though, since I'm not a fan of partisanship in general and tend to hold some so-called conservative and some so-called liberal positions.

Generally, I support sensible government--restrained but still powerful enough to act for the common good when necessary. I much prefer the slower, more moderate, slightly elitist approach taken in the Senate to the highly partisan, emotional--even rash--approach of the House. So I guess I'd disagree with most of your numbered specifics above. I like supermajorities and wish any regulation, law, confirmation, etc., needed at least 60% support to pass. I don't think the President should have any say in the rules of the house or senate because I believe in checks and balances--and I think we should do away with the Vice President as a tie-breaker in the Senate, particularly now that the VP is always of the President's party (originally the opposite was more likely to be the case since the VP was the person who came in second in the Presidential race, but as you can imagine that approach did not lead to harmony in the executive branch!).

I do wish there weren't so many amendments attached to bills in general--let's end omnibus budgets, but those seem to be an ill that originates in the House, not the Senate.

I hate term limits, since they would remove some of our best statesmen and women from office and leave us without the benefits of experience.

posted by: Rob Lewis on 05.24.05 at 11:17 AM [permalink]

I will say this about the "nuclear freeze" agreement: it has aggravated all the right people. Resentment that Congress is not even more readily run by organized interest groups and proposals to make Congress more like some European parliament are to me a good indication of people who need to have their toes stepped on, hard, more often.

With respect to Mark Lewis's comment, the advice and consent procedure, contentious or not has been around for over 200 years. That it is running into difficulties now seems less likely due to flaws in its design than to the inadequacies of the people involved in operating it now. The real problem we face now is the growing number of interest groups that not only recognized that federal policy is sometimes made by the courts but that prefer it that way. These groups do not intend to strike directly at the heart of representative democracy -- most of them are interested in court nominations as hooks for their fundraising as much as anything -- but that is nonetheless what they are doing.

posted by: Zathras on 05.24.05 at 11:17 AM [permalink]

That it is running into difficulties now seems less likely due to flaws in its design than to the inadequacies of the people involved in operating it now.

In my opinion, a process that allows the inadequacies of the people operating it to cause it to fail is by definition flawed. We need something more reliable. Whatever the history, the vague "advice and consent" process has been breaking down at an accelerating pace for the past three decades. I don't see it getting better, so let's be proactive and fix it.

posted by: Rob Lewis on 05.24.05 at 11:17 AM [permalink]

That it is running into difficulties now seems less likely due to flaws in its design than to the inadequacies of the people involved in operating it now.

In my opinion, a process that allows the inadequacies of the people operating it to cause it to fail is by definition flawed. We need something more reliable. Whatever the history, the vague "advice and consent" process has been breaking down at an accelerating pace for the past three decades. I don't see it getting better, so let's be proactive and fix it.

posted by: Rob Lewis on 05.24.05 at 11:17 AM [permalink]


Mickey Kaus actually suggests that the deal might actually be pleasing all those K-streeters.

I have to say I am not all that impressed with the deal, myself. It depends too much on good faith -- which is something that cannot compete with guaranteed interest group support. Though I might be amused if Patricia Owen or Pryor becomes a nominee to the Supreme Court, and the Dems have to explain why they are going to have to filibuster the nomnation.

posted by: Appalled Moderate on 05.24.05 at 11:17 AM [permalink]

"In my opinion, a process that allows the inadequacies of the people operating it to cause it to fail is by definition flawed"

Agreed, in principle. In practice government is, was, and always will be flawed. You cant legislate common sense, good will, or selflessness. There is an argument to be made that the system is, in fact, working just fine. The senate was made to be a cooling cup, and things certainly have had time to gel in the last few years. Even though I prefer to see Bush get the people he wants through his own partys senate, i would be perhaps more upset if it were so easily done that the Senate became a rubber stamp for executive fiat. The current crisis may be ugly, but it _has_ slowed things down, it _has_ spurred debate, and it _has_ created political implications for Bushs choices that may well have gone under the radar screens had he been able to have his nominees approved in an afternoon.

posted by: Mark Buehner on 05.24.05 at 11:17 AM [permalink]

In practice government is, was, and always will be flawed.

Agreed, but some governments are better than others. I don't see any reason to resign ourselves to a clearly flawed process when there's a way to fix it.

You cant legislate common sense, good will, or selflessness.

True . . . and exactly the reason why good process is so essential to good government. You can't rely on people to act well. But a good process reduces the need to rely on good will. The current filibuster deal is completely dependent on the continuing good will of the parties--which is why I have no confidence in its lasting very long.

I generally am not a big fan of constitutional amendments. But after reading what's preserved (in Madison's notes) of the Founders' debate on the advice and consent clause, I'm convinced that the Founders never really resolved the issue of nominations and confirmation satisfactorily themselves. There was lots of disagreement on this issue and it seems like the convention simply took a safe course by adopting language similar to that in the Massachusetts state constitution of 1780. But the Mass constitution of 1780 also establishes a formal council to provide advice and consent to the governor. And the rules for the operation of that council are specifically defined in the Mass state constitution. The federal constitution seems to assume that the Senate will function much as the Mass council, but it doesn't clearly define any process similar to that defined for the council in Mass. So it seems to me that the business of defining the process for nominations and confirmations was left unfinished by the founders in 1787. We are lucky that the system has worked relatively well for 200 years or so. But it's starting to show its cracks now, and so maybe it's time to reopen the debate that began, but was not fully completed, in Philadelphia in 1787.

posted by: Rob Lewis on 05.24.05 at 11:17 AM [permalink]

Rob, what you're missing is that it's cracking not because of the caliber of the participants or the structure of the Senate, but because of the redefinition of the role of judiciary. As long as the federal government is so overbearing, and as long as the judiciary takes upon itself such a huge role within that government, the stakes for each nomination will be extremely high. And if the stakes are that high, the system will break down.

posted by: David Nieporent on 05.24.05 at 11:17 AM [permalink]


The stakes are indeed very high in appointments to both judicial and executive offices given the expanded role of the federal government. But I guess I don't see why high stakes necessarily mean that the process is doomed to break down if it is well designed. The current appointment process is so poorly defined by the constitution, however, that we can't even agree on what it is. Why not fix this problem and see if things improve?

posted by: Rob Lewis on 05.24.05 at 11:17 AM [permalink]

Mark Buehner wrote:

Heh. Interesting but not quite comparable. Those nominees never had the votes to be confirmed and most of them were put in the last few months of Clintons second term when he was handing out positions and pardons like candy. If they would have been voted on they would have lost, that can hardly be described as an attack on the democratic process..

There’s quite a bit of truth to that. Nine of the so-called “blocked” nominees were actually submitted to the Senate in January of 2001 after the election and literally days before the inauguration of President Bush. This had not happened before as other presidents considered it crass to send judicial nominees after an election in which a President from the other party was going to be taking office.

Many of the other “blocked” nominees were sent at the end of the Senate term which didn’t provide the Senate enough time to hold hearings. Under the rules, the nominees were then “returned” to the White House which had the option of renominating them in the next Session. Most of those nominees (over 80 percent) were renominated and then approved by the Senate in the following session. However because they were “returned,” Senate Democrats have been labeling them as "blocked" because they (technically true) did not receive an up-or-down vote while omitting the fact that most of them were then approved by the next Senate session! That’s where we get the little factoid about how “more than 60 of President Clinton’s nominees were ‘blocked’ by Senate Republicans.”

For those who want to read more about where these numbers came from, click on my name to read the piece by Gerry Daly who has done yeoman’s work on tracking down and crunching the numbers.

posted by: Thorley Winston on 05.24.05 at 11:17 AM [permalink]

AM, I read Mickey Kaus's commentary, against my better judgment. It was more snark for snark's sake, of the kind that so often makes Slate so tiresome. Stories about the purchase of influence in the House of Representatives have been in the press for years now -- even Slate has had a few -- yet the argument now is that keeping the Senate from becoming more like the House is what K Street wants.

Not even Kaus believes this, but he is under some pressure to sound hip and bashing McCain, the mainstream media's favorite, is sort of a hip thing to do.

posted by: Zathras on 05.24.05 at 11:17 AM [permalink]

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