Would one of our readers from the Democratic side of the aisle please explain to me the principled, Constitutional basis for filibustering judicial nominees?
Not the political basis. I get that, all things equal, lefties want lefty judges and righties want righty judges.
Not the "hey, some of these nominees are kinda crazy" — I kinda get that too. (Indeed, I’ve argued against approving a few of these nominees on just those grounds.)
Not the tit-for-tat, "the Republicans stymied Clinton’s nominees and payback is a biotch" meme. There’s some truth to that, and maybe it justifies a retributive act or two when the Democrats regain a majority in the Senate. But the Democrats aren’t in the majority.
Not the "advise and consent" argument; contrary to some members of the Republican leadership, "advise and consent" does not mean "the president should get his way." Nor does it mean that the political views of the nominees are irrelevant, so long as the nominees are "competent" according to some (unknown) apolitical standard.* It means "advise and consent." It means the good housekeeping seal of approval from 50+1 Senators. These are lifetime appointments, and the legislature has a significant role to play.
No, I’m curious why nominees should need sixty votes — rather than a majority — in order to become judges. Is there a principled, Constitutional ground for it? Cause I don’t see it.
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*I doubt the "President gets his way" crowd actually means what it says; rather, it’s an easy way to rile the rile-able (who, being rile-able, ain’t always all that thought-ful).
Consent in the Senate means .ge. 60 for stuff that matters. Used to be 2/3. When we had a Democratic majority the rule was that one senator could block a judge from his state.
The principled, Constitutional grounds for requiring the supermajority is to prevent extremist nominees from getting appointments and to insure that appointees be indiviuals with broad-based appeal.
By the way, have you checked out the nominees? They are a districtly strange and abnormal group of weirdos. There is nothing partisan about opposing them.
I think the Founding Fathers thought that Senators were very big deals. There is plenty of evidence, including the six-year terms. Power over treaties and appointments. Each and every Senator (ok, maybe not Cornyn) is an important person who, I believe, in my occasional reverential mood, should have a great deal of power and responsibility.
If the Senators want to make it a condition of appointments that the votes be unanimous, for the Constitution gives them such discretion, their consensus needs be respected as much as the President’s wishes.
Shouldn’t the defense of filibustering be separate from a defense of its role in judicial confirmations?
I.e., first we need someone to explain, quite generally, the principled basis for the Senate’s being a supermajoritarian deliberative body, or its adopting that policy on matters of a special category.
Then we need someone to explain why judicial confirmations fit into the special category (e.g. gravity, permanence, etc.).
I would be a little leery of any defense of filibusters that tied the practice too closely to the judicial case, in particular. The custom is of much wider application, so the rationale should be, too, if it *is* a principled rationale.
“The Senate shall make its own rules.” or some paraphrase, I don’t want to look it up.
Why should this clause be disrespected or discounted more than any other clause?
It means “advise and consent.” It means the good housekeeping seal of approval from 50+1 Senators.
Errrr… begging the question much?
The Constitution neither requires nor prohibits the filibuster. It grants the Senate the power to set its own rules, and Senate rules currently require 60 votes to close debates for appointments and bills alike.
See Article 1, Section 5, Clause 2: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
I don’t see any basis at all in the text for an argument that the filibuster is unconstitutional as applied to judicial nominations, but not unconstitutional as applied to regular bills. If “consent” to a nominee implies 50 + 1 votes since there’s no provision for a supermajority, so does “pass” a bill. But neither does. The Senate sets the rules for how it’s consent is given and how bills are passed.
If “consent” means that nominees are constitutionally entitled to an up-or-down vote on the Senate floor, then it seems to me that ANY procedural means of preventing them from getting an up-or-down vote on the Senate floor is unconstitutional. Who cares whether it’s the minority or majority party that does it? Many of them expected or hoped that we wouldn’t be so crass as to have political parties. I mean, sure, the filibuster means 40% of the votes can prevent a floor vote, but then, right now in the House the displeasure of 2 out 435 representatives (Hastert and DeLay) can prevent a floor vote.
The filibuster’s not constitutionally required, either, mind you. It’s up to the Senate. When you commit such a decision to the political branches, they tend to make it for political reasons. The Democrats are doing it; so are the Republicans.
Sheesh. It’s one thing to take Scalia’s word for everything and assume everyone who disagrees is making it up. It’s another to do it for Bill Frist.
At least you didn’t argue it was required by the Constitutional principle of “majority rule” in the U.S. Senate.
“No, I’m curious why nominees should need sixty votes — rather than a majority — in order to become judges.”
Because a narrow majority should not be able to disproportionately pack the judicial branch? This idea is both principled and Constitutional.
I think part of what you’re reacting to is the inherent stupidity of the mechanism. Obviously a Senator standing in the middle of the deliberative floor and reading a phone book (is this still how they do it?) is surreal. However, if you get over that and just think of it as requiring 61 votes for consent, I can’t imagine what’s wrong with it.
No, I’m curious why nominees should need sixty votes — rather than a majority — in order to become judges. Is there a principled, Constitutional ground for it? Cause I don’t see it.
“Principled”? Sure. “Constitutional”? Inasmuch as those are the rules of the Senate, sure; beyond that, I’m not expert enough to say.
The principle that I think is relevant — and why I’d be happy with a straight 2/3 majority sans filibuster required for judges — is that the judges are supposed to be neutral arbiters of the law, and, as such, should (minimally) be palatable to as large a swathe of the populace as possible. A simple majority isn’t sufficient; that implies that a minimally majoritarian element that seems at odds with the supposed independence of the judiciary.* A party, faction or interest group shouldn’t be able to stack the judicial deck with a mere 50%+1 majority — and I say that irrespective of the political leanings of those in power.
Put another way: a judge who is only acceptable to half the Senate and not 60% is probably not a judge whose independence or objectivity I’m willing to trust. If that means that judgeships become safer and more centrist, well, that’s a feature, not a bug.
* That’s particularly true in a country as divided as we are right now.
I see sidereal and I are largely in agreement, only he’s smarter, pithier and faster. Man, I hate it when that happens.
Question: what was the principled, Constitutional justification for the long-standing “blue slip” rule?
I would contend “blue slips” were indeed justified by the Founders obvious desire to have actual politics happen sometimes. And Senators found in practice that it paid to give respect and deference to each other.
But they are not required to give such respect and deference as a matter of law. But if one side acts with disrespect, don’t expect the other to answer with comity.
Faster by a hair. Those other accusations are dirty lies.
How many here knew the etymology of ‘filibuster’?
“The term comes from the early 19th century Spanish and Portuguese pirates, “filibusteros”, who held ships hostage for ransom”
That’s awesome!
‘filibusteros’
Ah yes, they were a fearsome crew–swinging aboard the helpless merchant ship with phonebooks clutched in their teeth, ready to bore the crew into submission.
Of course, the hard part was keeping together a full complement of 60 pirates….
Thanks for the language lesson, sidereal.
The related word “freebooter” turns out to come from the Dutch for “free booty”; “filibuster” comes from the same Dutch word via the French “flibustier”. The web says one meaning of “filibuster” is “the act of colonial settlement with the intent of changing the existing government.” “The term is almost always applied to Anglo-American settlers in Latin America.” – guess that’s why I can’t recall seeing it in the context of the I/P conflict.
Meant to say, “‘Filibustero’ comes from the same Dutch word via French” etc.
The principled argument for why you, von, should oppose the end of the filibuster right now is, we’ve got a President and Congressional majority that has shown alarming disregard for the Constitution and the rule of law, and are unwilling to provide any check on each other–the Republicans show remarkable party discipline on most votes. It’s a bad time to screwing around with the filibuster. This is especially true of legislation–and I see no reason to believe this would not be extended to legislation if they get away with it. But as far as I’m concerned, with the potential for three or four Supreme Court nominations at a time when the courts are the only ones doing any meaningful checking or balancing, it applies to the courts too. Given that there have been zero Republican defectors on all the torture document supboena & investigation votes and the Gonzales nomination, you want to count on six Republican defectors to vote down Justice Yoo or Justice Bybee? Given the Gonzales and Bolton nominations, you want to count on Bush lacking the chutzpah to nominate them? I’m not saying they’d actually be likely to try this–I’m saying, I’d just as soon not risk it.
That’s not a constitutional argument in the sense of, “the text of the Constitution requires that you oppose it.” It is a constitutional argument in the sense that, if you believe in the vision of the country set forth in the Constitution, you should oppose this.
I’m big on following legal procedure too. But I’m more concerned about making sure there are legal procedures for making sure we’re not going to be indefinitely detaining U.S. citizens without charge, or deporting people to torture in Egpyt in Syria on basically no evidence. I’m not so concerned about which side does a more convincing acting job when it piously argues that its position on the judicial filibuster is motivated by Constitutional principles, while the other side engaging is partisan politics.
Note that some in what Quiddity at uggabugga euphoniously calls “celeblere” (for “Center Left Blogosphere”) have considered the idea of agreeing to a vote on this matter… early in 2009.
Some of the above arguments are clearly not what Von is asking for, and I’m not sure that any of them are. Katherine’s is quite reasonable, but presumably a truly principled argument shouldn’t rely on the likely behavior of current political actors. Also, this thread oddly fails to reference the Newman–Schmitt–Yglesias conversation on this exact topic. I say oddly because I know Bob read it and Katherine may well have.
Not an attorney nor a constitutional scholar, so I have nothing to add there.
But, Chesterton mentioned “gates” the other day through the mouth of Sebastian.
The filibuster is a gate of some kind, and if we tear it down to satisfy the crowd in charge now, I’m going to feel free to exhibit all kinds of gateless behavior in the street.
Not a good reason, but a small reason. This is all metaphorical on my part, which makes it no reason at all, unless I really begin to care.
I want to know what the principled reason is behind having a filibuster and not actually continuing the debate. If you want to continue debate, do it. I want to see real filibustering on TV. I want to see Kennedy blathering on the floor.
Katherine’s first post is spot on, and the second ain’t bad either. They don’t leave much to add, though, so I’ll shut up now.
I for one would welcome TV cameras being turned on a discussion of decisions made by the judges Bush has put back in the queue. While I don’t think judicial appointments should be subject to a popular vote, it would be good for Americans to learn about some of the reactionaries the president would like to elevate. The more free airtime our future presidents HRC and Obama can get, and the more exposure Frist and Cornyn get, the better for the liberal cause.
“the Newman-Schmitt-Yglesias conversation on this exact topic. I say oddly because I know Bob read it and Katherine may well have.”
Good question. Don’t know why I didn’t link it. Pretty partisan, in that Newman & Yglesias think the filibuster favors conservatism, which is almost a “duh”. “cmdicely” does his usual interesting work in comments.
Hey, I was tired.
“presumably a truly principled argument shouldn’t rely on the likely behavior of current political actors”
This is utter nonsense.
A truly principled interpretation of the Constitution shouldn’t rely on the likely behavior of current political actors. But what the Constitution says about this is, the Senate makes its own rules.
Is filibuster of judges a good idea in general? I can’t really say. You could argue that a lifetime appointment who can strike down laws of Congress should be acceptable to 60% of the Senate. Or you could argue that you get a court of wishy washy moderates like O’Connor and Kennedy instead of brilliant, stubborn justices like Scalia, Black, or Douglas.
Is filibuster of bills in the Senate a good idea in general? I think so. I don’t think the “it’s undemocratic argument” works when you’ve got a House that’s so completely undemocratic and unaccountable–in both the way that House members are elected by voters, and how the leadership runs the House. It’s very easy for extremists to take over when your election is never at risk and you can bully your caucus as much as you like. And the Senate is undemocratic by design; large population states are grossly underrepresented (they are also underrepresented in the House, the electoral college and the Amendment process).
But even if I thought it were a good idea in general, the benefits would be minimal & hard it would be a terrible idea right now, because the dangers I describe above would far outweigh any potential benefits I can imagine.
This idea that it’s somehow morally impure to care about the actual substantive effect of a decision on people’s lives–I don’t know where it comes from. But it’s nuts. When a President tells you he needs to suspend habeas corpus, and he can’t show you all the evidence but he promises he won’t abuse that power–the right answer may depend on whether you’re dealing with Nelson Mandela or Robert Mugabe; a James Madison or a Richard Nixon. When an attorney general promises to uphold civil liberties if you delegate this authority for the duration of the war–it is not immoral to say yes to Francis Biddle and no to Mitchell Palmer.
If you’re like Russ Feingold, and you have a real conviction that you should vote for the President’s cabinate unless there’s a compelling reason not to, that’s fine. But Feingold has found that the bad consequences of particular nominee outweighed the procedural considerations at time. And you may simply not have any real idea which procedure is better in the abstract–as I said, I just have no idea whether 60% or 50% approval of judges is a better way to go.
I want to know what the principled reason is behind having a filibuster and not actually continuing the debate.
I’m genuinely curious: what purpose do think that the “debate” (if that’s even the right word) on the Senate floor will serve?
“This idea that it’s somehow morally impure to care about the actual substantive effect of a decision on people’s lives”
Begging the question.
Perhaps I should say, “Riding roughshod over questions of short/long-term effects, small/big picture effects, partisan/non-partisan arguments”.
“I want to know what the principled reason is behind having a filibuster and not actually continuing the debate. If you want to continue debate, do it. I want to see real filibustering on TV. I want to see Kennedy blathering on the floor.”
As I understand it, it’s because the Republicans don’t feel like listening to Kennedy blather, and it’s harder to maintain a quorum than to keep one guy up there with a phone book and some gatorade at all times.
I wouldn’t mine seeing an actual filibuster of a Supreme Justice though. I think Reid and Durbin could do it with style.
As a Libertarian, I believe anything that impedes the Congress from inflicting yet more laws or insufferable judges upon the land is a Good Thing. While the fillibuster is not in the Constitution, it is traditional in the Senate, and as a conservative I see no good reason to discard a tradition merely because it has become temporarily inconvenient. Indeed, the whole philosophical basis of conservatism is a respect for tradition and a desire to have a government which moves as slowly as possible, and only upon receiving as close to a consensus as is reasonable and/or practicable to obtain. The fillibuster serves admirably for this purpose, and I see no reason to discard it as a tradition merely because it has become temporarily inconvenient.
A desire to destroy the fillibuster exibits a lack of respect for tradition that is, well, unconservative. I am sorry, but Frist and his ilk are not conservative. They are dangerous radicals who encourage disrespect for law and order, make stands based upon political expediency rather than upon principle, and have no respect for tradition, dignity, and decorum. These radicals should be sent home and replaced with true conservatives, not that a Barry Goldwater or Ronald Reagan would be allowed in the Republican Party anymore (too conservative for the neo-Trotskyite neo-cons who run the Party)…
– Badtux the Conservative Penguin
“Begging the question”.
“Riding roughshod over questions of short/long-term effects, small/big picture effects, partisan/non-partisan arguments”.
Oh, here we go again…Only if you read that sentence in isolation and ignore every other word I wrote on this thread explaining how I think these considerations play out in this particular case.
I am not saying that it’s always morally justified to do whatever’s in your party’s best interest. I sure didn’t feel that way in the months after the 2000 election; I wanted Gore to take the high road all the way. And it drives me crazy to hear people on Kos get all xenophobic about amending the Constitution to allow naturalized citizens to become President because there’s a chance it could mean that Arnold gets elected.
I am saying it’s not automatically irrelevant or immoral to consider. And for this particular proposal, in this particular time and place, it’s decisive.
There are long-term, big-picture effects to removing all limits on executive power, during a war with no foreseeable end, to an administration that has proved over and over again that it cannot be trusted with that sort of power.
Is that a partisan argument? Well, yeah, I guess it is, in the sense that it’s Democrats making it and Republicans opposing it. That doesn’t tell you much about who is right and who is wrong.
But it would be awfully gauche to act like there was anything at stake when we could act like judges in a fencing match.
I can tell I’m not the only one who thinks that it is surreal for Republicans to pretend there is no reason to keep the fillibuster right after a discussion of tradition, which found the Republicans supporting discrimination on the basis that tradition should be upheld.
I want to add a quote I stole from a comment on Unqualified Offerings (shout out to leonard!)
“I can’t with any certainty why the fence is there. But I don’t need to know why it’s there if it’s made of human bones. In that case, I push it down.”
Getting rid of the filibuster simply doesn’t meet that standard.
Thanks all. I really was curious, and appreciate the honest responses.
It means the good housekeeping seal of approval from 50+1 Senators.
Errrr… begging the question much?
Actually, Anarch, since that was a declarative statement of my own view — and not a question — I wasn’t begging the question.
Bold, off!
I want to make one point as to why I would want to keep the filibuster based on general principles. Part of the lubricant of the machinery of democracy is a network of “gentlemen’s agreements,” arrangements that may be part of Senate rules or simply done in a certain way out of habit and deference. Respect for such rules and established usages is part of the larger respect for the idea of the system that holds everything together.
Redistricting every ten years, for example, might not be written as law anywhere, but that it was done that way until recently was one of those many filaments that we don’t see that hold the general structure together. Ditto the electoral college system.
Constitutional? No. The filibuster isn’t constiutionally mandated.
Principled? One basis for a principled support of the filibuster is that 50+1 Senators may, depending on which they are, represent far less than 50% of the population (Colorado, Montana, Alaska, Wyoming….). Under the filibuster, the smaller number of Senators that comes closer (I haven’t done the math) to representing the voting power of the underrepresented states can block a judge that seems to them to be inimical to the interests of more than half the people in the country.
The filibuster has nothing to do w/ the Constitution, tho the Senate is allowed to set its own rules.
I do think that Madison would approve, based on my reading of the Federalist.
I’m not all that hard over on the filibuster rule in either direction. If the Dems hate a particular candidate enough to risk being beaten about the head and shoulders with their own filibuster, fine. Point taken; this one ain’t gonna fly. I don’t think it’s absolutely critical that any specific individuals get judicial appointments. And I agree with Katherine that making it easier for the majority to have its own way whenever it wants is probably undesirable.
I haven’t weighed in on this mostly because I’ve been contemplating the tradeoff between hobbling Congress as much as possible to keep them from doing much more damage, and preserving some range and ease of motion for genuine emergencies. I’d be all in favor, for instance, for placing an upper bound on concurrent resolutions if I thought doing so would be constitutional. Ditto for other communications masquerading as law. Probably 95% of that is an utter waste of time.
So, could we get SCOTUS to levy fines on members of Congress for boneheaded notions of what’s Constitutional, sort of like professional sports fines? Make them big enough and pretty soon they’ll begin to cut into income from speaking engagements and the like. Not at all serious about this, but I like to imagine disincentives being put in place to discourage rank politicking and encourage more of what Congress is at least notionally in place to do.
Of course one might postulate that Congress is there merely as a distraction (see: The Moon Is A Hash Mistress), but for the paycheck for that distraction (in terms of both money and national identity) has gotten a little steep.
Edward.
Here is an interesting article on judicial filibusters, Its more along the lines of tit-for -tat -but is worthwhile nonetheless
http://www.washingtonpost.com/wp-dyn/articles/A50120-2005Jan30.html
I don’t believe there is a principled reason (constitutionally) for judicial filibusters. This is on the executive calendar after all. The constitution lays out all sorts of 2/3 voting (for ratification of treaties, for overriding veto’s, for constitutional amendments) but does not proscribe a 2/3 vote for Judicial Nominations.
What seems most bizarre is how untenable a regular precedent this is. If filibusters become the rule of the day, are already burdensome nomination process -becomes even more tedious. (indeed impossible)
This is more than the ruling party bottling up a presidents picks in committee. No this is ANY minority having an absolute right to a 60 vote margin for confirmation.
It really raised the stakes something fierce.
Back to reality: I’d be willing to trade a higher majority requirement for the filibuster. I think a vote should be allowed, but I don’t get all upset about it when it’s not.
Fitz has a point, but I think it’s argument from emotion more than logic. The main point I see here is the rule of unintended consequences: filibuster too frequently and you’re going to encourage the recess appointment.
Picking up on Lizardbreath’s point (and Katherine’s explanations), I have been told that the 55 Republican senators actually represent fewer people that the 44 Democratic senators– which I think is a pretty good argument right there for a filibuster. (Sorry I’m too lazy, or is it overworked, to confirm it).
Slart, I’m not sure what you see as the difference between a filibuster and a higher majority requirement? Is it just the difficulty of explaining to people that a vote on cloture is basically the equivalent of a vote on the nominee?
Oh, and a message to blog Upper Management:
This post in the archives has as its previous post, this. Small mistake, but annoying if you’re simply paging back through the daily posts.
Please repair, if you can figure out what broke. I don’t have that level of access.
I also want to reiterate the recommendation of Mark Schmitt’s original defense of the filibuster. It completely convinced me. Here’s the heart of the argument:
That’s it exactly.
Now, there is nothing to make you appreciate Burkean conservatism more than a bunch of scary radicals from the other party. But that doesn’t mean your appreciation of Burkean conservatism is insincere.
It’s not just change happens more quickly v. change happens more slowly. The filibuster can slow down bad changes. It can also speed up good ones. It allows the minority to put an issue on the table, and make the majority to go on record as opposing good things and supporting bad things. Often when this happens, the majority finds it’s actually too embarrassed to maintain a position if people start paying attention.
The minority party ought to be able to force a debate–ought to say–you may outnumber us, but even so–this we cannot allow. It’s GOOD for demoratic accountability, not bad for it. Unless you think the House of Representatives under its current leadership is an example of democracy in action.
This is heavily influenced by my closely following the torture debate in the Senate. The filibuster is the only reason the Democrats were able to mount the case they did about Gonzales, and get the written replies they did to their questions. It may be the only reason that the Democrats & moderates were able to get the amendments about extraordinary rendition removed from the House version of the intelligence bill.
It is the only reason Durbin was able to offer his anti-torture amendment. When he did it passed unanimously, 99-0. But I would bet a lot of money that if not for the filibuster & the other set of rules that make the Senate the Senate, there would not have been a vote on this amendment. And it is only the filibuster that gives Markey’s, Durbin’s, Leahy’s, Kennedy, & Dodd’s bill outlawing extraordinary rendition any chance of passing.
So. I have seen how it can not only prevent bad changes, but also help bring about good changes, or at least shine a light on something to argue why it needs to be changed.
You can accuse me of being results oriented I guess, but I don’t see why it wouldn’t work equally for an out-of-control Democratic minority….That the filibuster is needed to prevent an abuse of power right now, suggests that it might be a useful tool in preventing abuses of power in the future.
It is true that I thought differently when Clinton’s health care plan was being debated. But I was in ninth or tenth grade when that happened. I don’t think it’s just hypocrisy to change my mind over a decade later based on subsequent data. If I start making the opposite argument when the Democrats take over that’d be hypocritical, but I wouldn’t do that. If it’s eliminated I’m not going to advocate putting it back–if an implied contract is breached, it’s breached. But I won’t support the Democrats being the one to breach it.
One of them involves a vote.
I should say that while I think my ‘underrepresented states’ point is a principled argument in favor of the filibuster, I don’t think that by itself it’s compelling. I’m not firmly decided on what I think should happen here.
“One of them involves a vote.”
Actually, as I mentioned, they both involve a vote– just one is on cloture (ending the filibuster) and one is on the nominee.
Guess I wasn’t clear on that, was I? Well, little is new.
What I meant was I’d be all over easier circumvention of a filibuster if the tradeoff was higher majority requirement for passage. I hadn’t even considered cloture votes. Not enough sleep; not enough caffeine.
And one more amendment: what I had in mind by trading the filibuster for a higher majority vote requirement was that the filibuster would effectively no longer be available. And again, I have no illusion that this is the right or just solution. There’s lots of things you could do to even the rules playing field; the question is are any of them themselves subject to further tampering.
For instance, how about this one: no rule change goes into effect until the majority party changes polarity. That’d put a damper on rules manipulation, I think.
Thanks for clarifying. For myself I googled and found this post explaining that Dem Senators do represent (at least Constitutionally) a bare majority of the population (warning for the Kos-allergic, it is a diarist over there, but she posts links to her calculations if you really care).
Her calculations are in error; if 50.59% of the population were in fact 293,698,914 people, we’d be a nation of nearly six hundred million, which ain’t the case.
That, and I’m not really sure what her point is. Senators represent the states, not the people.
It’s not a simple arithmetic error — if you read her posts, she (intentionally) credits each Senator with the full population of their state. Given that each state has two Senators, her method counts each person twice.
And her point is obvious — that while it’s easy to think of the party holding a majority of Senate seats as having received a majority of the votes for senators nationally, given the huge variations in the number of people represented by any given Senator, that isn’t necessarily the case. You can call her point unimportant, but it’s absolutely clear what it is.
The unprecedented level of these filibusters is that there breadth and scope- 20 plus judges (& this is important and crucial APPELATE court judges)
Its never been done before (even remotely) In the past (a handful of times over 200years) the minority has used the filibuster to stall (just stall) a single nominee – before a vote occurs – in order to get the majority to reconsider. This is a systematic blocking of our most politically attractive & conservative nominee’s, to the most important appellate courts.
It has the added benefit of preventing them from ever entering the pipeline for eventual SCOTUS nomination. (and if they do, then tarnishes them once they get there [i.e. = one of the filibustered 5 ect.)
You see, the Democrats got burned on Clarence Thomas, many of them voted for him as a Appellate court nominee. When he came up for the Supremes – it was like “Hey, you voted for him before- if he was so unqualified then – why did you vote for him?”
Its not hoarse trading Slartibartfast – its a constitution. You (or your side) is not in a position to barter- Nor is this suddenly a time to start talking about overhauling the confirmation process to insure greater minority rights. Its only because the Republicans are a threat to ongoing Judicial hegemony (philosophical not political) with a return to textualism and originalism that this is such an issue.
Its very important to remember that (in our view) the reason there is such concentration and consternation about judicial appointments is PRECISELEY the prevalence of the philosophy of living constitutionalism. Under this doctrine, were judges give themselves great latitude (we say legislating from the bench) the personal/political views of the Justices become paramount.
By way of illustration- 20 years ago Justice Scallia received a bi-partisan 98 votes for confirmation in the senate. Back then the rule of law stood much more firmly, and narrower reading of the constitution prevailed. Its precisely this anything goes attitude of living constitutionalism that places so much emphasis on what positions any particular judge holds.
51 approve – 49 disapprove is too low a standard for lifetime appointments, it’s that simple.
No Postit -why suddenly is it so simple, was it that simple under Ginsburg. Why suddenly are we discussing a complete overhaul of the system?
Who benifits?
“51 approve – 49 disapprove is too low a standard for lifetime appointments, it’s that simple.”
Perhaps, but historically that hasn’t been true at all. And nominees from states with 2 Senators from the President’s party were never blocked like this. (Which isn’t an argument for the stupid blue-slip rule.) When I’m in a bad mood I feel like liberals have subverted the rule of law by perverting the role of the judiciary into a super-legislature and then they got annoyed when their favorite tool started getting too many conservatives appointed to it.
Scalia’s easy confirmation came on the heels of a tough fight for Rehnquist’s confirmation as Chief.
I’m a little puzzled as to how admitting the error is better than simply fixing it. And this:
is just silly. That information is very, very easy to come by. Of course, it’s difficult to divide the entire population of the country up, given nonparticipation and ineligible voters. But one can make a somewhat more meaningful mad stab at it, providing one is willing to continue to ignore the fact that the Senate represents the states, not the people.
I claimed neither horse nor “hoarse” trading, Fitz. And point out to me exactly what you mean by “it’s a constitution”. If you’re trying to say it’s a constitutional issue, it might have been a good idea to go on and point out in what way it’s a constitutional issue.
Oh, and I couldn’t let this slide:
I don’t know; I’d say that both parties are in an excellent position to barter. But being a registered Republican my whole life, this comment confused me a bit more than the rest of your comments.
Sebastian: When I’m in a bad mood I feel like liberals have subverted the rule of law by perverting the role of the judiciary into a super-legislature and then they got annoyed when their favorite tool started getting too many conservatives appointed to it.
It’s a good thing you only believe that when you’re in a bad mood, Sebastian, as you must know it’s manifestly not true in any detail.
Sebastian has brought this thread full circle, back to von’s query about the constitutional and principled basis for the current filibuster rule – I’d be interested to hear more about how use of the filibuster, especially in the judicial nominations context, constitutes a subversion of the rule of law, seeing as how the filibuster itself is (presently), a rule of a lawmaking body.
Er, maybe I mis-read: it is the perversion of the judiciary that has subverted the rule of law? And the argument is that lawless judicial activism is now to be curbed by the infusion of conservative judges?
Travis
As I wrote earlier
“”The constitution lays out all sorts of 2/3 voting (for ratification of treaties, for overriding veto’s, for constitutional amendments) but does not proscribe a 2/3 vote for Judicial Nominations.””
The filibuster is not in the constitution. Its a senate rule alone, and can be changed. It has never been used in this manner against the executive calendar (nominations and so forth)
traditionally it has been used only in the legislative calendar – and as such, provides a useful role.
But this is out of control with people talking about some new 60 vote rule. It changes the entire process.
Its dangerous as hell.
“you must know it’s manifestly not true in any detail”
I guess if one wants to exclude the last 40 years your statmeent might have some truth in it.
For 40 years the Dem’s shoved throught judges… now they are upset the Rep’s are going to appoint their judges.
Maybe, you could explain how it is manifestly untrue in more detail.
I appreciate your point of view Fitz but I don’t agree with it. Your executive calendar/legislative calendar distinction is a red herring as there is no inherent prescription on when the filibuster may and may not be used. Its use is at the discretion of members of the Senate, unless and until it is eliminated from the rulebook. You may have an argument from tradition, but as a constitutional matter the Senate rules are what the Senate makes them. I.e., “advise and consent” means what the Senate makes it mean, and the Senate debate rules reflect that. As you point out, Senate rules can be changed, but that doesn’t make them somehow less constitutional. This is inherent in the concept of separation of powers and checks and balances. Filibuster is just another procedural move, close cousin to a recent favorite, the bottling up of disfavored nominations in committee when the nominees would have passed an up-or-down vote on the floor. In fact, forcing the minority party to filibuster is a better procedural option because it is more visible and thus more accountable to public opinion.
Slarti – providing one is willing to continue to ignore the fact that the Senate represents the states, not the people.
or that the House represents the districts, not the people, in which case only the Presidency would seem to represent the ‘people’?
Fitz’s praise of the nominees in question seems pretty much entirely divorced from facts. Not that the Dems have done a very good job getting those facts out front.
The judiciary is an almost sacred institution, and today’s Republicans have no respect for it. They are embarrassing the judiciary and the legal profession with their ridiculous nominations.
sorry, italics off
Slarti – providing one is willing to continue to ignore the fact that the Senate represents the states, not the people.
or that the House represents the districts, not the people, in which case only the Presidency would seem to represent the ‘people’?
italics off.
Anderson.
Why are these nominees “ridiculous”?
You can call them that – but it doesn’t make it so.
(maybe they don’t rule the way you like? – is that extreme)
Or, to put the same point in more Constitutional terms:
The filibuster serves more or less the same function for the Senate that the First Amendment “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” serves for the nation.
In order to clarify what I mean, why don’t I try to anticipate some counterarguments:
1) That’s ridiculous. No one’s going to arrest the Democratic Senators here..
That they’re not going to be arrested is actually not so relevant. The First Amendment prevents a government from shutting down a printing press or seizing and destroying a newspaper even if no one is arrested–this is called “prior restraint” on speech. It was clear the First Amendment forbade this back when some people argued that the First Amendment allowed prosecution for sedition.
Without the filibuster & some of the other less well known rules that separate the Senate from the House, the majority can impose a “prior restraint” on the minority–it can say “sit down and shut up” whenever it wants to.
2) They are perfectly free to make their points outside the Senate
Certainly. But I am NOT arguing that the filibuster is required by the right to assemble and petition. I am arguing that in one important respect
filibuster: Senate, as
right to assemble & petition: nation.
To understand my argument, you have to separate the functional and moral arguments for the First Amendment.
The moral, substantive argument is that it is simply illegitimate and wrong and an abuse of power for the government to punish people for speaking out. Today almost everyone in America agrees with this, and we tend to think of it as the ONLY reason for the First Amendment.
But back when it was first debated, it was more often defended on functional, procedural grounds as well–that it led to better, wiser decisions by the government; that it was the only means to separate truth and falsehood. In Jefferson’s words:
I agree that the moral, substantive argument doesn’t apply when it comes to the filibuster in the Senate. What I am arguing is that the functional, procedural argument does.
3) The right to assemble and petition is not a right to have the government LISTEN to your petition, and it’s sure as hell not a right to prevent the government from doing anything else until it hears your petition.
Also true. But here’s the thing: the government officials who will be deciding whether they care about your petition, do so based on the knowledge that you can fire them if you want to. They know that how likely you are to fire them over this issue depends not only on whether they agree with you, but on how strongly you feel about it. Taking the time to organize, to write a petititon, to collect signatures, to actually sign it, to deliver it to them–these are all signs that not only do you disagree with them, but that you disagree strongly enough to spend time doing something about it. And the more strongly you feel about an issue, the more likely you are to vote based on it, and try to convince others to vote based on it.
If 40% of the country signed a petition, or wrote a letter, or showed up at a protest, the President would take notice. Actually, it would take a lot less than 40%. If 40% of a state did so, a Senator would take notice. Same for a House member & his district.
Whereas, without the filibuster & the other procedures protecting the minority there is no incentive other than bipartisan comity & being an all around nice guy for Tom DeLay or Bill Frist to care what the minority party thinks. To stay in power, all they need is:
1) for their party to keep a majority of seats
2) for them to get a majority of votes in their state or district
3) for them to retain the support of a majority of their caucus.
There’s a very large incumbency advantage in all of those things, and House or Senate Democrats don’t get to vote directly on any of them. They can only influence them to the extent that they can persuade the public at large. As long as there’s no danger of revolt within his caucus, losing his district, or losing a House majority, Tom DeLay doesn’t really have to care whether the Democrats respect him but oppose him, actively dislike him, or despise him with a white hot passion. He may care, he certainly should care, but he doesn’t have to care. And, seemingly, he doesn’t care.
This happens on the state level too–where the majority leader rules what happens like the lord of the manor, for years and even more than a decade, even if much or most of the state can’t stand him. See: Willie Brown of the California Assembly, Sheldon Silver of the New York Assembly, Joe Bruno of the New York Senate, Thomas Finneran of the Massachusetts House. I bet we can think of some other examples too.
This is a bit less likely in the Senate than in the House, because the members’ elections are more competitive & they don’t get to choose their voters. But on the other hand, the Senate is inherently undemocratic in the sense of disenfranchising large states in favor of small states. And it’s only elected every six years. So it’s entirely possible for a minority faction to get control & keep control, especially when the country is as geographically polarized–as far as both regions of the country, and urban v. rural areas–as it is right now. Bill Frist just has no particular incentive to give a crap about what the voters in New York, California, Illinois, Massachusetts, etc. etc. think of him, unless they have some means of convincing the voters in Tennessee or in enough other low population states to threaten his majority.
Without a means of forcing a debate, a minority party’s ability to convince the public is extremely, extremely limited. How can you convince people this bill is awful if it passes before you even read it? How can you convince people to oppose this abuse of power if you can’t point out it’s existence? You can’t even find all the crappy provisions they stick in there, let alone get them to take them out. You can issue a press release or hold a press conference, but the press won’t care. They do horse race coverage, not issues coverage. If you don’t have the means of stopping a bill, they won’t care what you think about it.
Whereas, if a minority abuses the filibuster, if it uses it to block the majority because they can and because they feel like it rather than out of any higher principle–if there’s an actual debate on it, and the Republicans make principled arguments for a change, and they read from the phone book and scream “segregation forever!”, they’re going to look like complete jerks. And the majority has a good bully pulpit for saying what jerks they are. And they will be punished for it at the polls, and may lose enough seats that they can no longer sustain a filibuster. This is what happened with the homeland security bill in 2002 and to Tom Daschle in 2004. I think the Democrats were right on the merits, but they failed to convince the voters of it; fair enough.
But if they remind people more of Jimmy Stewart than Strom Thurmond; if they say, “we honestly fear for the Constitution” and explain exactly why, and the Republicans smarmily play the race card or repeat the same talking points over and over, the Republicans will look like jerks.
If the Democrats know in advance that they’ll look like jerks, or it’s just not worth the tsuris, they won’t try filibustering–and in fact, they very often haven’t, particularly when it comes to nominations. I think they’ve actually been much too cautious about this in some cases. But if Daschle was sometimes clueless about where to pick his battles, Reid and Durbin are not.
If the Republicans know in advance that they’ll look like jerks, or it’s just not worth the tsuris, they won’t force an actual filibuster–in and fact, they very often haven’t.
Then there are times when they force a debate, and either both sides look like jerks, and no one really pays attention except to make fun of them. Does anyone remember the Great Senate Sleepover of October 2003″? (which was actually not a filibuster of the nominees, but an extended debate to protest the threatened filibuster of the nominees, adding a layer of comedy). It sort of gives the lie to the Democratic portrayal of the Senate as a great deliberative body. But it also shows how petty you can look when you force a debate or block a vote when you have nothing to say.
oops.
For 60 years DEMOCRATS shoved through judges? How the BLEEP could that be, when the Republican Party has owned the White House since 1968 except for 12 years in the middle where few judges were appointed, and the majority of judges on the bench today were appointed by Republicans? Over the last 46 years, 34 of them have had Republican Presidents. It is utterly ludicrous to whine about “Democrats” shoving through judges, when almost 1/3rd of the judges on the bench today were appointed by Ronald Reagan and over half were appointed by Republican presidents!
This whole “judicial activism” rubarb is ridiculous. Sounds like what John Adams might have ranted about when John Marshall nearly 200 years ago that the Supreme Court had the right to refuse to enforce laws that violated the Constitution, thereby giving the Supreme Court a veto power on the law… I guess my point is that “judicial activism” of this sort is a tradition that has lasted for 200 years of this nation’s existence, and any TRUE conservative isn’t going to dismiss a tradition of this depth merely because it has become temporarily inconvenient. That wouldn’t be, well, conservative.
As for the fillibuster being used against judges, remember that if the Democrats use it too often, nothing gets done. For the most part, as a Libertarian, I believe that’s a *GOOD* thing — that government which is best is that government which governs least. We already have too many laws. The Bush administratino and its big-spending Big Government agenda that has added more people to the government payroll than any President since FDR *NEEDS* to be slowed down, and if it takes the fillibuster to do it… well, that’s the tradition in the Senate, and a disrespect for tradition is not a hallmark of *true* conservatives (as vs the Bushevik neo-Trotskyites who now control the Republican Party, who are about as “conservative” as FDR).
– Badtux the Libertarian Penguin
Katherine reveals herself at the end of her argument when (she writes)
“”force a debate or block a vote when you have nothing to say.””
But we do have something to say… If it abortion or God in the pledge or gay-marriage, the public knows what judicial activism is. They also know how Democrats treat judges. They no longer accept the extremist label.
Bad Tux wrote
“”This whole “judicial activism” rubarb is ridiculous.””
I suppose this goes to the crux of the argument.
If you don’t think we have a point, then filibusters are permissible to stop our “extremist judges”
Since filibustering judicial nominees effectively cuts out the “consent” portion of the “advise and consent” clause, I’m failing to see the principle here. Usually when supermajorities are required they’re expressly spelled out. “Consent” without any other qualification means simple majority. Yes, the Senate makes its own rules, but that doesn’t mean Senate rules trump the expressly stated words of the Constitution. Also implicit in “advise and consent” is that the president nominates and the Senate votes up or down. I’m also opposed to blue-slipping and any other unwarranted delays since those maneuvers, as well as filibusters, violate the spirit of advise and consent.
Democrats (and Republicans, too) should be tread carefully when using anti-democratic tactics while calling those anti-democratic tactics “principled”, especially when the folks opposing the nominee are further to the left than the nominees are to the right. It’s ridiculous when People From the American Way start talking about judges being “out of the mainstream”, this from a group that’s never been out of the shallows.
The thing about the so-called “nuclear option” is that it’s already been deployed. Over the last three years, Democratic Senators have dropped a whole raft of tactical nukes in the form of judicial filibusters. Nuclear war is already upon us. What’s another nuke anyway.
Politically, the filibustering tactic for judges is a poor one because some day, forty or fifty years from now, [ 😉 ] there may be a Democratic president and a Democratic majority in the Senate, and at that time the filibustering maneuver can be turned around and used to bite Democrats in the butt. The obstructionism is also a failure on a political level right now given that one of the biggest obstructionists, Daschle, was voted out of his job and the Democrats lost four seats in the last election cycle. I used to be more passionately opposed to judicial filibustering, but the since tactic has basically backfired, it doesn’t bother me so much. This is yet another example of the Democrats operating as the No Party instead of the Better Alternative Party. For their long-term health, and because I like a two-party system, I hope they see the light.
Seems to me that if Democrats want to have more power, they should do it the old-fashioned way and try to win elections. I also agree with Sebastian. If the filibuster is employed, let’s see the Senators on the floor talking for lengthy periods of time.
“Consent” without any other qualification means simple majority.
Sounds more like “consensus” to my ear.
Friday Ping Pong
In which I round up various arguments and smart points in the blogosphere I choose and like at random. Call it an Instabastard impression, but I hope to make it a new feature here at RM.
Friday Ping Pong
In which I round up various arguments and smart points in the blogosphere I choose and like at random. Call it an Instabastard impression, but I hope to make it a new feature here at RM.
Somehow, I think the Democrats shouldn’t take advice from even allegedly well-meaning people like Charles Bird, when they have a vested interest in seeing Democrats lose.
I have to find his “threat” about judicial fillibusters being used against future Democratic judicial nominees frankly ridiculous. How many of Clinton’s nominees were blocked by blue slips or in comittee, and never reached an “up or down vote” (which doesn’t seem to me to be implied at all by the phrase “advise and consent”). Many of the Republicans (both elected and not) who’re now talking about “advise and concent” requiring floor votes and no fillibusters and so on didn’t make a peep when hundreds of judges were blocked without votes during Clinton’s presidency. So forgive me if I have trouble taking their “principled” arguments seriously.
I completely fail to see how fillibustering extremist judges is a “nuclear” option, when blue-slipping or bottling them up in comittee isn’t. And complaints about “activist judges” and “Democrats forcing through judges” are laughable, considering msot of the judges on the bench, as has been mentioned before, have been appointed by Republican Presidents
And, as Kevin Drum said in the Washington Post, the Republicans have systematically been taking away all the rules that let the minority party hold up judges or otherwise influence the Senate, rules they used while they were in the minority. It’s not just hypocritical, it’s also short-sighted. I fully expect that when the Republicans lose power in the Presidency, the Seate, and/or the House, we’ll have plenty of public complaints about “runaway Democrats crushing the rights of the minority” or something like that, since all the rules that protected the minorty will be gone.
Friday Ping Pong
In which I round up various arguments and smart points in the blogosphere I choose and like at random. Call it an Instabastard impression, but I hope to make it a new feature here at RM.
BadTux makes a good point.
Of the current Supreme Court justices, Rehnquist was nominated by President Nixon. Stevens was appointed by President Ford. O’Connor, Scalia, and Kennedy were appointed by President Reagan, and Reagan promoted Rehnquist to be Chief Justice. Souter and Thomas were appointed by Bush I. Ginsburg and Breyer were appointed by Clinton.
That’s 7 out of 9, for those keeping score. Usually the Democrats controlled the Senate, but this was not always true. I know that two of Reagan’s proposed nominations were voted down or withdrawn–Bork and Ginsburg–but it was only on ideological grounds in Bork’s case.
Of the other justices who served on the Warren Court (1953-1969), Burger Court (1969-1986), or Rehnquist Courts (1986-present):
Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson were appointed by Franklin Roosevelt. Harold Burton*, Tom Clark, and Sherman Minton* were appointed by Harry Truman. Earl Warren, John Harlan, William Brennan, Charles Whitaker*, and Potter Stewart were appointed by Dwight Eisenhower. Byron White and Arthur Goldberg were appointed by John F. Kennedy. Abe Fortas and Thurgood Marshall were appointed by Lyndon Johnson. Harry Blackmun, Lewis Powell, and Warren Burger were appointed by Richard Nixon.
So if you add up all the Supreme Court justices who served on these three courts, unless I’ve screwed up the math, 13 were appointed by Democrats and 15 were by Republicans. The more meaningful calculation is actually man-years of service on the court, since they range from 30+ years (Douglas, Black, Brennan, Rehnquist, Stevens) to 5 or less (Goldberg, Whittaker, Fortas). But I
don’t feel like doing the math; <"http://encarta.msn.com/media_461570162/U_S_Supreme_Court_Justices.html">the info is here if someone else wants to. Of the justices who the Federalist Society regards as the greatest forces for eeevviilll–I would guess, Douglas, Warren, Brennan, Marshall, Blackmun, and Stevens**; someone correct me if I’m wrong–four were appointed by Republican Presidents.
Even if you accept the Federalist Society parable of the Fall of the Supreme Court from the Garden (I so don’t), the explanation is less Democrats ramming their nominations through the Senate, than:
1) the bad luck, good luck, divine providence, satanic possession, or Democratic brainwashing that led Dwight Eisenhower to nominate Justices Warren & Brennan and Richard Nixon to nominate Justices Stevens and Blackmun or,
2) the young appointment age, robust health & sheer stubbornness that kept Justices Douglas, Brennan, Stevens, Black, Marshall and Blackmun on the court for a combined 182 years. (So in a way, it’s God’s fault.)
*who?
**Goldberg would be included, but he only lasted three years.
BadTux makes a good point.
Of the current Supreme Court justices, Rehnquist was nominated by President Nixon. Stevens was appointed by President Ford. O’Connor, Scalia, and Kennedy were appointed by President Reagan, and Reagan promoted Rehnquist to be Chief Justice. Souter and Thomas were appointed by Bush I. Ginsburg and Breyer were appointed by Clinton.
That’s 7 out of 9, for those keeping score. Usually the Democrats controlled the Senate, but this was not always true. I know that two of Reagan’s proposed nominations were voted down or withdrawn–Bork and Ginsburg–but it was only on ideological grounds in Bork’s case.
Of the other justices who served on the Warren Court (1953-1969), Burger Court (1969-1986), or Rehnquist Courts (1986-present):
Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson were appointed by Franklin Roosevelt. Harold Burton*, Tom Clark, and Sherman Minton* were appointed by Harry Truman. Earl Warren, John Harlan, William Brennan, Charles Whitaker*, and Potter Stewart were appointed by Dwight Eisenhower. Byron White and Arthur Goldberg were appointed by John F. Kennedy. Abe Fortas and Thurgood Marshall were appointed by Lyndon Johnson. Harry Blackmun, Lewis Powell, and Warren Burger were appointed by Richard Nixon.
So if you add up all the Supreme Court justices who served on these three courts, unless I’ve screwed up the math, 13 were appointed by Democrats and 15 were by Republicans. The more meaningful calculation is actually man-years of service on the court, since they range from 30+ years (Douglas, Black, Brennan, Rehnquist, Stevens) to 5 or less (Goldberg, Whittaker, Fortas). But I
don’t feel like doing the math; <"http://encarta.msn.com/media_461570162/U_S_Supreme_Court_Justices.html">the info is here if someone else wants to. Of the justices who the Federalist Society regards as the greatest forces for eeevviilll–I would guess, Douglas, Warren, Brennan, Marshall, Blackmun, and Stevens**; someone correct me if I’m wrong–four were appointed by Republican Presidents.
Even if you accept the Federalist Society parable of the Fall of the Supreme Court from the Garden (I so don’t), the explanation is less Democrats ramming their nominations through the Senate, than:
1) the bad luck, good luck, divine providence, satanic possession, or Democratic brainwashing that led Dwight Eisenhower to nominate Justices Warren & Brennan and Richard Nixon to nominate Justices Stevens and Blackmun or,
2) the young appointment age, robust health & sheer stubbornness that kept Justices Douglas, Brennan, Stevens, Black, Marshall and Blackmun on the court for a combined 182 years. (So in a way, it’s God’s fault.)
*who?
**Goldberg would be included, but he only lasted three years.
Somehow, I think the Democrats shouldn’t take advice from even allegedly well-meaning people like Charles Bird, who have a vested interest in seeing Democrats lose.
I have to find his “threat” about judicial fillibusters being used against future Democratic judicial nominees fainly ridiculous. How many of Clinton’s nominees were blocked by blue slips or in comittee, and never reached an “up or down vote” (which doesn’t seem to me to be implied at all by “advise and consent”). Many of the Republicans (both elected and not) who’re now talking about “advise and concent” requiring floor votes and no fillibusters and so on didn’t make a peep when hundreds of judges were blocked without votes during Clinton’s presidency. So forgive me if I have trouble taking their “principled” arguments seriously.
I completely fail to see how fillibustering extremist judges is a “nuclear” option, when blue-slipping or bottling them up in comittee isn’t. And complaints about “activist judges” and “Democrats forcing through judges” are laughable, considering msot of the judges on the bench, as has been mentioned before, have been appointed by Republican Presidents
And, as Kevin Drum said in the Washington Post, the Republicans have systematically been taking away all the rules that let the minority party hold up judges or otherwise influence the Senate, rules they used while they were in the minority. It’s not just hypocritical, it’s also short-sighted. I fully expect that when the Republicans lose power in the Presidency, the Seate, and/or the House, we’ll have plenty of public complaints about “runaway Democrats crushing the rights of the minority” or something like that, since all the rules that protected the minorty will be gone.
BadTux makes a good point.
Of the current Supreme Court justices, Rehnquist was nominated by President Nixon. Stevens was appointed by President Ford. O’Connor, Scalia, and Kennedy were appointed by President Reagan, and Reagan promoted Rehnquist to be Chief Justice. Souter and Thomas were appointed by Bush I. Ginsburg and Breyer were appointed by Clinton.
That’s 7 out of 9, for those keeping score. Usually the Democrats controlled the Senate, but this was not always true. I know that two of Reagan’s proposed nominations were voted down or withdrawn–Bork and Ginsburg–but it was only on ideological grounds in Bork’s case.
Of the other justices who served on the Warren Court (1953-1969), Burger Court (1969-1986), or Rehnquist Courts (1986-present):
Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson were appointed by Franklin Roosevelt. Harold Burton*, Tom Clark, and Sherman Minton* were appointed by Harry Truman. Earl Warren, John Harlan, William Brennan, Charles Whitaker*, and Potter Stewart were appointed by Dwight Eisenhower. Byron White and Arthur Goldberg were appointed by John F. Kennedy. Abe Fortas and Thurgood Marshall were appointed by Lyndon Johnson. Harry Blackmun, Lewis Powell, and Warren Burger were appointed by Richard Nixon.
So if you add up all the Supreme Court justices who served on these three courts, unless I’ve screwed up the math, 13 were appointed by Democrats and 15 were by Republicans. The more meaningful calculation is actually man-years of service on the court, since they range from 30+ years (Douglas, Black, Brennan, Rehnquist, Stevens) to 5 or less (Goldberg, Whittaker, Fortas). But I
don’t feel like doing the math; the info is here if someone else wants to. Of the justices who the Federalist Society regards as the greatest forces for eeevviilll–I would guess, Douglas, Warren, Brennan, Marshall, Blackmun, and Stevens**; someone correct me if I’m wrong–four were appointed by Republican Presidents.
Even if you accept the Federalist Society parable of the Fall of the Supreme Court from the Garden (I so don’t), the explanation is less Democrats ramming their nominations through the Senate, than:
1) the bad luck, good luck, divine providence, satanic possession, or Democratic brainwashing that led Dwight Eisenhower to nominate Justices Warren & Brennan and Richard Nixon to nominate Justices Stevens and Blackmun or,
2) the young appointment age, robust health & sheer stubbornness that kept Justices Douglas, Brennan, Stevens, Black, Marshall and Blackmun on the court for a combined 182 years. (So in a way, it’s God’s fault.)
*who?
**Goldberg would be included, but he only lasted three years.
Charles, by what authority does “consent” mean a simple majority? I agree, that “consent” implies “the Senate votes up or down,” but you are missing the point that it is the Senate’s prerogative under the Constitution to determine what the phrase “the Senate votes up or down” actually means. “Advise and consent” is a Constitutional function, about which the Constitution prescribes nothing except that it exists. It is inherent in the principle of coequal branches exercising separated powers that the Senate gets to decide, mostly free from review by anybody but itself, how to do its Constitutional business. There is nothing in the Constitution or the Senate rules that says “consent” has to mean what you think it means. In fact, the whole point is that “consent” means what the Senate says it means, expressed through the adoption of and adherence to specific rules for debate and process. If the Senate wants to change the rules that give order to the “advise and consent” process, that’s one thing. But the assertion that “advise and consent” has some inherent, Constitutional meaning that absolutely prevents a supermajority ever being needed as a practical matter in some specific debate is simply incorrect as a matter of fact and law.
BadTux makes a good point.
Of the current Supreme Court justices, Rehnquist was nominated by President Nixon. Stevens was appointed by President Ford. O’Connor, Scalia, and Kennedy were appointed by President Reagan, and Reagan promoted Rehnquist to be Chief Justice. Souter and Thomas were appointed by Bush I. Ginsburg and Breyer were appointed by Clinton.
That’s 7 out of 9, for those keeping score. Usually the Democrats controlled the Senate, but this was not always true. I know that two of Reagan’s proposed nominations were voted down or withdrawn–Bork and Ginsburg–but it was only on ideological grounds in Bork’s case.
Of the other justices who served on the Warren Court (1953-1969), Burger Court (1969-1986), or Rehnquist Courts (1986-present):
Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson were appointed by Franklin Roosevelt. Harold Burton*, Tom Clark, and Sherman Minton* were appointed by Harry Truman. Earl Warren, John Harlan, William Brennan, Charles Whitaker*, and Potter Stewart were appointed by Dwight Eisenhower. Byron White and Arthur Goldberg were appointed by John F. Kennedy. Abe Fortas and Thurgood Marshall were appointed by Lyndon Johnson. Harry Blackmun, Lewis Powell, and Warren Burger were appointed by Richard Nixon.
So if you add up all the Supreme Court justices who served on these three courts, unless I’ve screwed up the math, 13 were appointed by Democrats and 15 were by Republicans. The more meaningful calculation is actually man-years of service on the court, since they range from 30+ years (Douglas, Black, Brennan, Rehnquist, Stevens) to 5 or less (Goldberg, Whittaker, Fortas). But I
don’t feel like doing the math; the info is here if someone else wants to. Of the justices who the Federalist Society regards as the greatest forces for eeevviilll–I would guess, Douglas, Warren, Brennan, Marshall, Blackmun, and Stevens**; someone correct me if I’m wrong–four were appointed by Republican Presidents.
Even if you accept the Federalist Society parable of the Fall of the Supreme Court from the Garden (I so don’t), the explanation is less Democrats ramming their nominations through the Senate, than:
1) the bad luck, good luck, divine providence, satanic possession, or Democratic brainwashing that led Dwight Eisenhower to nominate Justices Warren & Brennan and Richard Nixon to nominate Justices Stevens and Blackmun or,
2) the young appointment age, robust health & sheer stubbornness that kept Justices Douglas, Brennan, Stevens, Black, Marshall and Blackmun on the court for a combined 182 years. (So in a way, it’s God’s fault.)
*who?
**Goldberg would be included, but he only lasted three years.
Decent point, but since Senators are constrained to one per state, the House is much more representative of the people. In one house, you have representatives whose constituency is half a million having equal voting power as a representative having a constituency of 35 million. In the other, the imbalance from largest to smallest is 900k vs 500k. So although the House isn’t precisely reflective of the will o’ the peeple, it’s much closer than the Senate, and that’s as intended (as I recall, anyway).
BadTux makes a good point.
Of the current Supreme Court justices, Rehnquist was nominated by President Nixon. Stevens was appointed by President Ford. O’Connor, Scalia, and Kennedy were appointed by President Reagan, and Reagan promoted Rehnquist to be Chief Justice. Souter and Thomas were appointed by Bush I. Ginsburg and Breyer were appointed by Clinton.
That’s 7 out of 9, for those keeping score. Usually the Democrats controlled the Senate, but this was not always true. I know that two of Reagan’s proposed nominations were voted down or withdrawn–Bork and Ginsburg–but it was only on ideological grounds in Bork’s case.
Of the other justices who served on the Warren Court (1953-1969), Burger Court (1969-1986), or Rehnquist Courts (1986-present):
Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson were appointed by Franklin Roosevelt. Harold Burton*, Tom Clark, and Sherman Minton* were appointed by Harry Truman. Earl Warren, John Harlan, William Brennan, Charles Whitaker*, and Potter Stewart were appointed by Dwight Eisenhower. Byron White and Arthur Goldberg were appointed by John F. Kennedy. Abe Fortas and Thurgood Marshall were appointed by Lyndon Johnson. Harry Blackmun, Lewis Powell, and Warren Burger were appointed by Richard Nixon.
So if you add up all the Supreme Court justices who served on these three courts, unless I’ve screwed up the math, 13 were appointed by Democrats and 15 were by Republicans. The more meaningful calculation is actually man-years of service on the court, since they range from 30+ years (Douglas, Black, Brennan, Rehnquist, Stevens) to 5 or less (Goldberg, Whittaker, Fortas). But I
don’t feel like doing the math; the info is here if someone else wants to. Of the justices who the Federalist Society regards as the greatest forces for eeevviilll–I would guess, Douglas, Warren, Brennan, Marshall, Blackmun, and Stevens**; someone correct me if I’m wrong–four were appointed by Republican Presidents.
Even if you accept the Federalist Society parable of the Fall of the Supreme Court from the Garden (I so don’t), the explanation is less Democrats ramming their nominations through the Senate, than:
1) the bad luck, good luck, divine providence, satanic possession, or Democratic brainwashing that led Dwight Eisenhower to nominate Justices Warren & Brennan and Richard Nixon to nominate Justices Stevens and Blackmun or,
2) the young appointment age, robust health & sheer stubbornness that kept Justices Douglas, Brennan, Stevens, Black, Marshall and Blackmun on the court for a combined 182 years. (So in a way, it’s God’s fault.)
*who?
**Goldberg would be included, but he only lasted three years.
BadTux makes a good point.
Of the current Supreme Court justices, Rehnquist was nominated by President Nixon. Stevens was appointed by President Ford. O’Connor, Scalia, and Kennedy were appointed by President Reagan, and Reagan promoted Rehnquist to be Chief Justice. Souter and Thomas were appointed by Bush I. Ginsburg and Breyer were appointed by Clinton.
That’s 7 out of 9, for those keeping score. Usually the Democrats controlled the Senate, but this was not always true. I know that two of Reagan’s proposed nominations were voted down or withdrawn–Bork and Ginsburg–but it was only on ideological grounds in Bork’s case.
Of the other justices who served on the Warren Court (1953-1969), Burger Court (1969-1986), or Rehnquist Courts (1986-present):
Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson were appointed by Franklin Roosevelt. Harold Burton*, Tom Clark, and Sherman Minton* were appointed by Harry Truman. Earl Warren, John Harlan, William Brennan, Charles Whitaker*, and Potter Stewart were appointed by Dwight Eisenhower. Byron White and Arthur Goldberg were appointed by John F. Kennedy. Abe Fortas and Thurgood Marshall were appointed by Lyndon Johnson. Harry Blackmun, Lewis Powell, and Warren Burger were appointed by Richard Nixon.
So if you add up all the Supreme Court justices who served on these three courts, unless I’ve screwed up the math, 13 were appointed by Democrats and 15 were by Republicans. The more meaningful calculation is actually man-years of service on the court, since they range from 30+ years (Douglas, Black, Brennan, Rehnquist, Stevens) to 5 or less (Goldberg, Whittaker, Fortas). But I
don’t feel like doing the math; the info is here if someone else wants to. Of the justices who the Federalist Society regards as the greatest forces for eeevviilll–I would guess, Douglas, Warren, Brennan, Marshall, Blackmun, and Stevens**; someone correct me if I’m wrong–four were appointed by Republican Presidents.
Even if you accept the Federalist Society parable of the Fall of the Supreme Court from the Garden (I so don’t), the explanation is less Democrats ramming their nominations through the Senate, than:
1) the bad luck, good luck, divine providence, satanic possession, or Democratic brainwashing that led Dwight Eisenhower to nominate Justices Warren & Brennan and Richard Nixon to nominate Justices Stevens and Blackmun or,
2) the young appointment age, robust health & sheer stubbornness that kept Justices Douglas, Brennan, Stevens, Black, Marshall and Blackmun on the court for a combined 182 years. (So in a way, it’s God’s fault.)
*who?
**Goldberg would be included, but he only lasted three years.
Decent point, but since Senators are constrained to one per state, the House is much more representative of the people. In one house, you have representatives whose constituency is half a million having equal voting power as a representative having a constituency of 35 million. In the other, the imbalance from largest to smallest is 900k vs 500k. So although the House isn’t precisely reflective of the will o’ the peeple, it’s much closer than the Senate, and that’s as intended (as I recall, anyway).
In haste:
von: Actually, Anarch, since that was a declarative statement of my own view — and not a question — I wasn’t begging the question.
I was using the phrase “begging the question” in its original meaning, namely assuming that which you are attempting to prove. To wit, you’d asserted
It means “advise and consent.” It means the good housekeeping seal of approval from 50+1 Senators.
The first is, in fact, the statement found in the Constitution; that’s factual and is therefore immune to criticism. The second, however, concerns precisely the point we’re debating. You cannot simply lump your opinion into the category of factual statements (especially in contradistinction to misperceptions or misinterpretations as in the paragraph I’ve excerpted) without clarifying that this is your particular — and unsupported, I might add — view of how to interpret this phrase.
“Since filibustering judicial nominees effectively cuts out the “consent” portion of the “advise and consent” clause, I’m failing to see the principle here. Usually when supermajorities are required they’re expressly spelled out. “Consent” without any other qualification means simple majority. Yes, the Senate makes its own rules, but that doesn’t mean Senate rules trump the expressly stated words of the Constitution.”
How does filibustering a nominee cut out the “consent” portion of the “advise and consent” clause? I’m sure one can construct an argument here, but I see no reason why that argument so clearly derives from the plain meaning of the text that we should conclude filibustering a nominee is unconstitutional.
“Democrats (and Republicans, too) should be tread carefully when using anti-democratic tactics while calling those anti-democratic tactics “principled”, especially when the folks opposing the nominee are further to the left than the nominees are to the right.”
An interesting interpretation. Do you have a simple metric that would lead to this conclusion, because my own equally principled reading is quite the opposite. Or is this the fact that Daschle lost in an extremely conservative state? After being tarred as an obstructionist despite blocking a tiny percentage of Bush’s agenda? Because it if is, I’m just not buying your argument.
Regardless, weren’t conservatives always the ones who trotted out the fact that the US is not a strict democracy, but rather a liberal republic constituted by an elaborate series of mechanisms designed to thwart the tyranny of the minority, the tyranny of the majority, undue executive power, and the like? Because I always used to think there was something to this argument, particularly given a Federal architecture that leads to wildly disproportionate representation of some people in the institutions of American government.
Ultimately, I can’t help but coming back to the idiosyncratic – rather than general – issues here. How many of Bush’s appointees have been approved? How many are the Democrats blocking? How do those percentages stack up to Clinton, Bush I, Reagan, Carter, Ford, Nixon, etc.? Given the answers look pretty good for unfettered Executive authority in the current era, I just can’t bring myself to be outraged.
This is yet another example of the Democrats operating as the No Party instead of the Better Alternative Party.
You mean if the Democrats said, “We don’t like your nominee, how about this one instead” then Bush might actually accept the alternative?
A judicial appointment is not a bill. There’s no room for compromise, amendments, etc. It’s yes or no, and if you don’t approve of the nominee the only option is no.
And please, please, spare us the tactical advice as to how doing what the Republicans want will benefit the Democrats. This particular conceit by conservative bloggers is really worn out.
“[F]ilibustering judicial nominees effectively cuts out the “consent” portion of the “advise and consent” clause[.] ‘Consent’ without any other qualification means simple majority. . . . Also implicit in ‘advise and consent’ is that the president nominates and the Senate votes up or down.”
I understand that that is your view, but by what authority is this what is mandated under the Constitution? The point is that “the express words of the Constitution” only say “advise and consent.” The Senate is the body with the authority to determine, by its own process and generally reviewable by no one but itself, what “advise and consent” means. Your notions of what it means may be shared by members of the Senate who wish to do away with the filibuster based on that justification, but that doesn’t mean your preferred meaning is compelled by the Constitution. Again, the whole point of the process is a check and balance of the appointment power by putting approval in the hands of the Senate. The basic principles of coequal branches and separation of powers ensure that the Senate gets to decide how to discharge that responsibility.
With regard to “consent”, the Constitution doesn’t put any time limits around how quickly such must be provided. Since other things do have strict limits (eg, ten days on a veto) or backdoor methods (eg, appointing a judge for a limited term while Congress is not in session), the writers must have considered the possibility that the Senate could withhold consent by simply not voting. If the Senate feels that a determined minority of 40 members should be able to keep a subject from coming to a vote, that’s certainly within the scope of their authority to set their own rules. If the President feels strongly that his nominees are people who absolutely, positively must sit as federal judges, let him appoint them during Congressional recess and try again to make them lifetime appointments after the next Congress is seated.
“Consent” without any other qualification means simple majority.
If that were indeed true we wouldn’t be having this argument. It is quite clear to me that the constitution left it up to the Senate to determine exactly what “advise and consent” means. Just because the two thirds majority requirement was not specifically enumerated for senior judicial appointments does not mean a two thirds majority requirement was specifically excluded should the Senate determine such a requirement applicable under its rules of procedure.
These are lifetime appointments, and the legislature has a significant role to play.
There’s your answer right there. Given the nature of the Senate (where fifty-one senators can represent far less than half the American people), and the impact of the appointments, fifty-one just doesn’t cut it.
Yikes – sorry about the echo, or in my case the re-write.
argh. very, very sorry. Please delete the extra posts at your earliest convenience. My computer was possessed, apparently; they didn’t show up when I reloaded/pressed preview (not so strange) whereas other people’s news posts did (that’s a new one). I’ll only press post once this time even if it doesn’t show up.
Charles, all the arguments in your 1:09 post are explicitly addressed in my 1:15 a.m. post from last night, and many other people’s comments. I doubt I’ll convince you, given the vague sense I get from your post that Bill Frist and Rick Santorum are the kindest, bravest, warmest, most wonderful human beings you’ve ever known in your life. But have a look-see.
“Consent” without any other qualification means simple majority.
Says who?
Sorry about the double post above, the posting function was acting up and I thought it hadn’t gone through. Looks like it wasn’t just for me.
So although the House isn’t precisely reflective of the will o’ the peeple, it’s much closer than the Senate, and that’s as intended (as I recall, anyway).
I would say the House has become more ‘precisely reflective’ of gerrymandering to the point that it has largely become irrelevant as a national institution.
My computer was possessed, apparently; they didn’t show up when I reloaded/pressed preview
happened to me 3x on the poetry thread below this one. something’s wack with the serva.
So although the House isn’t precisely reflective of the will o’ the peeple, it’s much closer than the Senate, and that’s as intended (as I recall, anyway).
I would say the House has become more ‘precisely reflective’ of gerrymandering to the point that it has largely become irrelevant as a national institution.
I’ve written to the blog host and asked them to help.
e
I’ve written to the blog host and asked them to help.
e
Go to the Federalist papers.
(our primary means of denoting what the Constitution means)& why you hear so little about them.
It states “the president set the direction of the courts”
Its really obvious how they set up the system.
Try this
http://www.yale.edu/lawweb/avalon/federal/fed.htm
Go to the Federalist papers.
(our primary means of denoting what the Constitution means)& why you hear so little about them.
Says who? Says you!
The constitution is explicit in certain instances in others it is far from explicit and open to interpretation. The very idea that a group of 18th century notables could construct a document back then that dots all the i’s and crosses all the t’s for all time is ludicrous in the extreme. The Federalist Papers represent the intelectual thoughts of the period and capture the concensus of a faction of the participants in the original drafting of the constitution. But the existence of the Federalist Papers shouldn’t be held to preclude future intelectual endeavour by later generations.
The framers did a very good job and provided a framework that has stood the test of time but the constitution is exactly that, a framework document, not the stone tablets given Moses.
Federalist 77:
“In what manner is [the Senate’s influence over the President] to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can ORIGINATE the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant RESTRAINING him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary [beneficial], at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State [i.e., 1788 New York], a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.”
I challenge you to show me where in the Federalist Papers or in the records of the 1787 Convention it was decided that “consent” means a simple majority.
Decent point, but since Senators are constrained to one per state, the House is much more representative of the people.
That’s a fair description of how things are supposed to work (although I seem to remember something about each state getting TWO senators), but thanks to gerrymandering and House rules, I don’t think it’s an accurate description of where we are today.
I must protest people arguing over how many people each Senator represents. The Senate was created for the express purpose that a Senator from Rhode Island had exactly as much clout as a Senator from California or New York, regardless of population. Numbers of people represented only applies to the House of Representatives.
Now, whether you think the HoR adequately represents its constituents is a different arguement in a different thread.
Now, back to the arguement at hand …
I’m sure one can construct an argument here, but I see no reason why that argument so clearly derives from the plain meaning of the text that we should conclude filibustering a nominee is unconstitutional.
Lee, if a nomination is blockaded from even getting to a vote, where’s the consent? How does such an act uphold the spirit of advise and consent?
You mean if the Democrats said, “We don’t like your nominee, how about this one instead” then Bush might actually accept the alternative?
No, Bernard. What I’m saying is that, generally speaking, liberals have been spending most of their political time and energy saying “no” rather than pointing ways they could do it better. The Kerry campaign is a perfect example of that malady.
Twench do you contend the ‘States’ have status independant of their voting populations?
Ah, but did BadTux make a good point?
Lee, if a nomination is blockaded from even getting to a vote, where’s the consent? How does such an act uphold the spirit of advise and consent?
It upholds the spirit just fine — by withholding their consent, some senators are advising the president to put up different nominees.
“Lee, if a nomination is blockaded from even getting to a vote, where’s the consent? How does such an act uphold the spirit of advise and consent?”
I love this. “Consent” doesn’t mean they are obliged to consent to the President’s nominees! “Blockaded from getting to a vote,” however accomplished, means “no.” As in “no consent.” Again, this is the whole entire point of doing this in the first place: the appointment process is to be conducted with the advice of the Senate and subject to the consent of the Senate.
Bird – Lee, if a nomination is blockaded from even getting to a vote, where’s the consent? How does such an act uphold the spirit of advise and consent?
You slipped in an extra word there Charles, ‘spirit’, I was under the perhaps misguided notion that literalists like yourself prefered the ‘letter’ in this instance.
Bird – What I’m saying is that, generally speaking, liberals have been spending most of their political time and energy saying “no” rather than pointing ways they could do it better.
The R’s control the agenda of both Houses and the Presidency, under what construct of the machinery of government enshrined in the constitution and current rules of procedure do you suppose the D’s could put forward an alternative agenda?
“Lee, if a nomination is blockaded from even getting to a vote, where’s the consent? How does such an act uphold the spirit of advise and consent?”
It all becomes clear– CB thinks the Senate is required to “advise and consent.”
Or, in other words, the Senate is withholding its consent. The fact that the withholding of consent happens through the operation of the Senate’s procedural rules (which it has the constitutional power to adopt) rather than an up-or-down vote is constitutionally irrelevant. You can argue about whether the Senate rule is good or bad, but the argument that it’s unconstitutional strikes me as pretty silly.
Filibustering away a judicial nominee says ‘no’ to the question of consent in the same way that blue-slipping one did, or not allowing the nominee to get out of committee.
The word consent doesn’t imply a vote. It means that the Senate must give the president’s nominee permission to take the position he/she has been nominated for.
How the senate reaches that decision is left up to the senate itself!
I’m a programmer by trade, so this seems simple to me:
if (consent) {
nominee takes position
} else {
they don’t.
}
Simple. If the senate votes yes on the nominee, then they take their position. Not voting and voting no end up in the same place.
This assumption that senate is required to vote is an invalid one. The senate is required to give or withold consent; how the senate arrives at a decision with regards to said consent is up to the senate rules. At the moment, those rules include filibuster.
crutan
The R’s control the agenda of both Houses and the Presidency, under what construct of the machinery of government enshrined in the constitution and current rules of procedure do you suppose the D’s could put forward an alternative agenda?
Indeed, for an example of this, one need only look back as far as the debate over the Bankruptcy Bill and the lengthy list of Democrat-offered ameliorating amendments resoundingly rejected by the party in power.
“liberals have been spending most of their political time and energy saying “no” rather than pointing ways they could do it better”
The appointment process is a political process; a lot of the maneuvering gets (or used to get) done before the nomination to try and reach some reasonable accomodation of the President, i.e. to “advise” and try and achieve “consent.” A lot of Reagan’s nominees were shared with Democrats on the Judiciary Committee before being formally nominated; Republicans and Democrats generally agreed on which Conservative judges could be approved with no problems. The problems start when either side refuses to behave reasonably. As Alexander Hamilton said in the Federalist excerpt I posed above, when the President tries to force a bad nominee, he looks bad. When the minority party rejects a good nominee for no good reason, they look bad. (When the majority party threatens to change the rules so the President doesn’t have to be accountable to anyone, they look bad. Hence the present discussion.) This is the way it was designed to be.
What crutan said, if the Senate determined ‘consent’ constituted a cointoss then that is what ‘consent’ would mean. If the framers had wanted to circumscribe ‘consent’ they would have done so, but they didn’t, but they did lay out specifically how the Senate would determine its rules of procedure.
“given the huge variations in the number of people represented by any given Senator, that isn’t necessarily the case.”
Sorry, this whole argument is a dead end. For one thing it’s not symmetrical. If the fact that the Democrats represent 51% of the population despite being less than a majority of the Senate is an excuse for the filibuster, what happens when they take back control of the Senate? When Republicans are 45% of the Senate but 25% of the population and can still filibuster? Is it unprincipled then.
I find this whole thread bizarre. Usually I’m in tune with von’s positions and concerns, but this one just leaves me scratching my head. The only voting threshold firmly planted in a pure principle is 51%. But we have all kinds of supermajority thresholds all through government. . 75%, 3/5, 2/3, there’s probably even a ‘unanimous’ mixed in there. Are you contending all supermajorities are unprincipled? Or that there is some standard you could use to isolate principled supermajority requirements from unprincipled ones?
1) We know that’s how the Senate is set up. Right now the Senate is also set up to require 60 votes for cloture. If you are trying to make a MORAL argument, rather than a Constitutional argument, for majority rule, it seems to me that it should be the majority of the people rather than the majority of the states.
That the will of the majority of the people shall prevail is a Constitutional principle, though obviously one with a lot of exceptions. That the will of the majority party in the Senate shall prevail, just isn’t. There were not yet political parties when the Constitution was written. Many of the founders hoped there never would be.
The Constitution says that the Senate sets its own rules. If “consent” means a nominee is entitled to an up-or-down vote on the floor of the Senate, then ANYTHING that could prevent an up-or-down vote on any nomination is illegitimate. This includes not only the old blue slip rules, but the requirement that the judiciary committee approve a nominee, and thus opportunity to hold meaningful confirmation hearings. It’s no good to say that the committee majority is the same as a Senate majority, because again, the Constitution does not say a word about political parties in its discussion of how Congress functions. The committee requirement can very easily block a nomination or a bill that a majority of the Senate supports. I don’t doubt that John Bolton would be confirmed by the full Senate, but if Linc Chafee votes no, too bad. Similarly, I bet the bill outlawing extraordinary rendition would pass if the full Senate voted on it after a debate. But if the Republicans won’t break ranks on it, and they won’t, it dies. I don’t see why it’s more moral for a few members of the majority party to prevent a floor vote, than it is for 40% of the Senate to prevent a floor vote.
It would, of course, be a terrible, terrible idea to argue that the Senate can’t block a nominee in committee, because that would mean it had no authority to hold real hearings on a nomination, or to delay a vote until the nominee answered certain questions or provided certain documents.
The Constitutional argument for the filibuster would also logically imply that an up or down floor vote on every single proposed piece of legislation is constitutionally required. This is a ridiculously bad idea. It destroys the legislative process with a referendum system.
Now, no one would actually DO that, because it’s not in anyone’s interest. But what this demonstrates is that, the Constitutional argument for the filibuster is not actually that everything passes if it can garner 50+1 votes on the floor. The real premise upon which the Republicans’ allegedly constitutional justification for the filibuster is: The Constitution requires that the majority party in the Senate is entitled to have an up-or-down vote on legislation whenever it wants to.
Given that the Constitution does not mention political parties, more or less predates political parties in the U.S., and given say, George Washington’s well known belief that it would be better not to have such parties, this makes no sense. It’s not a serious, good faith constitutional argument. It’s an argument that the majority party in the Senate gets to do whatever it wants. It’s an effort to make the Senate work more like the House.
Given the current state of the U.S. House, and the state of most state legislatures where the majority party gets to completely dictate the rules of the debate, I think that is an awful idea.
2) It is false to say that Senators represent their states-as-states. Since the ratification of the 17th amendment, the Senate has represented the people of a state.
3) Here are some statistics about the state of democracy in the House in the November 2004 elections:
(source)
The House is no longer directly accountable to the voters. The Senate and President are much more accountable. Right now zero branches of the United States government are set up to fairly and accurately reflect the will of the majority of the country. The amendment process doesn’t do it either. The Presidency comes the closest, but the electoral college interferes.
I would really love to change this. I have cast one meaningful vote in a federal general election in my life where it was conceivable that it would affect the outcome–the 1998 New York Senate race. In that race, my vote was worth a tiny fraction of a North Dakotan’s vote. I am dorky enough to take this personally.
But it’s the House whose main job is to be small-d democratic, and it’s the House where small-d democracy has really fallen apart, and it’s the House we’d be reforming if we really cared about making the government respond to the will of the majority of the electorate.
The Senate filibuster’s good for democratic accountability right now.
von: for a non-Constitutional argument for preserving the filibuster until a saner time, try this quote from Congress Daily, via Atrios:
“Sorry, this whole argument is a dead end. For one thing it’s not symmetrical. If the fact that the Democrats represent 51% of the population despite being less than a majority of the Senate is an excuse for the filibuster, what happens when they take back control of the Senate? When Republicans are 45% of the Senate but 25% of the population and can still filibuster? Is it unprincipled then.”
Reread what I wrote, which was about the notion of being a “liberal republic,” not about how many people Democrats represent giving them some sort of special rights.
Sidereal–I think the point is, unless you believe the Constitution derives its legitimacy from states and not people–which few people really believe anymore, though Republicans argue it when it’s convenient in these ritualized arguments where everyone pretends to be mainly concerned with process–the idea that the majority party of the Senate has a Constitutional or democratic right to get its way has no basis in either the text of the Constitution or democratic theory. People aren’t arguing that the principle that a majority of the people should rule requires the filibuster be preserved. They’re only refuting the argument that it forbids it.
As Atrios said, the Theocrats are calling in their markers.
Balloon Juice (John Cole), for one, is appalled.
Worthless IOUs.
I’m going to put the main procedural argument for the filibuster very succinctly.
Suppose a dishonorable, dishonest, extremist, unethical faction were to gain control of all three branches of government. Suppose that this faction’s political success depended entirely on the public’s ignorance of what they were actually doing. Suppose they introduced the kinds of legislation, and supported the sorts of policy, and were led by the sorts of people, which really thrived best in the dark, safe from air or sunshine or public or media scrutiny. Suppose they were protecting themselves and each other from exposure to this sort of scrutiny, and the press for whatever reason wasn’t doing a very good job protecting them. Suppose that they had figured out a way to keep their seats safe & end all meaningful deliberation in the House, but the independent judiciary and the minority party in the Senate were preventing them from getting everything they wanted.
Suppose that the more the public saw of this faction, and their policies, and their bills, the less they wanted them running the country.
Would a filibuster be a useful check on this sort of faction? Would it be a good idea to let such a faction eliminate it?
Purely hypothetically, you understand. Just as a procedural question.
The reason I’m stating it that way is not to imply rather than state outright that the GOP is this sort of faction. There is no need for me to imply–I have stated it outright, in only somewhat less inflammatory language, and explained in detail my basis for believing this true. You may be convinced by this; you may not be.
The point is, this is a procedural argument that I think ought to carry some weight, even if you think it does not describe, or think it imperfectly describes, or are totally not sure how well it describes, today’s political situation. Even if the elimination of the filibuster might not empower such a group in the short run, it might increase the chance that such a group would gain power in the long run.
CB: What I’m saying is that, generally speaking, liberals have been spending most of their political time and energy saying “no” rather than pointing ways they could do it better. The Kerry campaign is a perfect example of that malady.
Bollocks. The liberals have spent an inordinate amount of time detailing ways that they can do things better — viz. the running joke in the second debate, I think it was, about Kerry’s “I have a plan”. The problem is that a) liberals have tended to focus on different things than conservatives, and b) conservatives like yourself haven’t been listening.
The Kerry campaign had plenty of maladies but a lack of specific strategic proposals wasn’t one of them. That honor belongs squarely in the hand of the winner, George W Bush. Make of that what you will.
I forgot, of course, to note that “liberals” and “conservatives” are remarkably ill-defined classes and shouldn’t be used in this context. Worth a reminder every now and then.
Suppose that the more the public saw of this faction, and their policies, and their bills, the less they wanted them running the country.
What I see of this faction, and their policies, and their bills, is a firm commitment to these principles:
A Strong Defense of America
A Culture of Life
An Ownership Society
The Spread of Freedom
Support of, and Defense of, the Family
I think that many more people see things my way than see the Bush Administration as purely evil.
Now, no individual, certainly no politician is perfect. That is a good reason for government to exert a much smaller influence over our private lives. I think that you would sort of agree with me on this, but might have in mind vastly different examples of unnecessary government interference than I have 🙂
A Culture of Life
Now, no individual, certainly no politician is perfect. That is a good reason for government to exert a much smaller influence over our private lives.
Terri Schiavo?
Just to clarify, I think that many of the “Anybody But Bush” crowd perceive malignant intent that is not actually there. I think every president, the bad presidents as well as the good, try their best to look after the best interests of the country. Call me hopelessly naive, but look, even President Clinton hangs out some times with the Presidents Bush. Every president is going to have a lot of people who really, really don’t like him. Lincoln, while in office, was the least liked and most hated president in our history.
Also, since this is an sort of an open thread, allow me to make a prediction:
When Katherine is elected to her child’s schoolboard, there will be hell to pay!
DaveC — Why did you ignore the point that Katherine was explicitly making in favor of contesting the point that Katherine was explicitly _not_ making?
DabeC: for what it’s worth, I don’t attribute malign intent to Bush. I think he’s a disaster as a president, but not because he is actually trying to do evil. Also for what it’s worth, I have never before been ‘anyone but’ anyone (or at least: anyone who had any chance at all of being President. I would have been ‘anyone but David Duke’, and also ‘anyone else but Pat Buchanan’, but I don’t think either really counts, for these purposes.)
I doubt that more than a handful of people think Bush is intentionally setting out to harm the country. It’s perfectly possible to despise him nontheless. (I don’t hate him precisely because I think that by his own warped standards, he thinks he’s doing God’s work. But I despise him because I believe that his standards are warped and because he’s so aggressively ignorant, self-righteous, arrogant, and inept.)
I see much of the same thing that you do, DaveC. The difference is that I see them as soundbites designed to distort and distract (“bullshit” in the Frankfurtian sense) rather than as elucidations of actual policies. I think that’s the qualitative distinction upon which the original comment was turning.
I do agree with you, however, that “many of the “Anybody But Bush” crowd perceive malignant intent that is not actually there.” I’ve gotten in close-to-knockdown rows with my more activist friends — though in Madison that’s not saying much — over this particular point. It’s far too easy, when seeing a destructive policy that you don’t like, to ascribe it to some kind of malicious intent; to say that Bush is out to screw the little guy, that Rove is a diabolical genius bent on world domination, that the Administration is trying to break the economy to return us to a feudal state, etc. It’s wrong, of course, but worse than that it’s actively counterproductive: any proper counter-strategy to the Bush Administration must necessarily be born of understanding what the actual pathologies of the Administration are, not what our simple mock-up would have them be. Basically, it’s being part of the “reality-based community”, for better or for worse, that will get us what we want… and (I hope) that applies to all people regardless of political persuasion.
It sure is easier to tilt at windmills, though, and if you can get enough people to join you… well, you know the rest.
Does President Bush have malign intent?
I would say not by his own lights, certainly not toward the country as he thinks of it. Woe betide you, though, if you might cause him political damage in any way. Look at the treatment of Richard Clarke, Joseph Wilson, Gen. Shinseki, Paul O’Neill, …
George W. Bush makes a very ugly enemy. You might say “that’s just politics.” Probably that’s how he thinks of it.
Anarch, from Madison.
It figures.
I was up there last spring and enjoyed watching the Loons.
Literally, on Lake Monona, in that big new conference center.
Since I’m a birder of sorts, I’d also like to put a good word in for that kitty-cat hunting season bill that is in the legislature.
Not that anybody would get emotional about that.
I’ve been lurking on this thread for a while now, trying to learn a thing or two while trying to get my head around the problem that’s always bugged me about the filibuster/nuclear option question: is it right or even practical that minority opposition should be governed by what someone above refered to as “gentlemen’s rules”?
So many of the procedural questions in the Senate have extraordinary ramifications for citizens, but they are so incredibly arcane that most voters won’t even register the “nuclear option” should it be enacted. Maybe it’ll make a blip, but it would be the victory or defeat of a sport’s team for most (non-blogging) observers.
The only other country whose internal politics I’ve ever had occasion to track seriously was France, and there the political nerds followed factions and alliances, not procedure. US senatorial maneouvring through and around committees, traditions, and fragile rules seems unusually Kremlinological, but I’ll admit to having little comparative data.
I’ll concede the Constitutional point, but I tend more generally to Katherine’s side: the Senate, in its own interest, shouldn’t destroy what seems to be one of the few mechanicisms for powerful minority dissent. And moreover I find it odd that the Senate should be able to do so.
To me, this is yet another data-point for my general theory that the Constitutional Framers were living in a smaller, simpler world than we inhabit today: the franchise was restricted, US media outlets were few, and there were no real parties in the modern sense of the word.
This is obviously an impractical comment, as changing the Senate’s governance of its own rules would require a constitutional amendment and I’m arguing that the public for the most part doesn’t notice the senate’s procedures. I guess my major contribution to the thread is this question: what are the other avenues of minority dissent currently available?
Well, the Senate is a truly peculiar place. 99 and 44/100 % of the time it operates by unanimous consent, that is any single senator can derail proceedings.
One of the reasons it is called the “nuclear” option is that the Dems have said they will basically refuse to cooperate in the day to day running of the Senate, which everyone assumes will essentially cause a meltdown in Senate operations.
Anarch, from Madison. It figures.
What’s especially ironic is that I came up with this handle in New Jersey, I’m not an anarchist and, in fact, I’m a logician.
I do, however, love irony-that-isn’t-quite ironic, hence the nick 😉
Since I’m a birder of sorts…
No kidding? A very good friend-of-the-family here in Madison is an insanely avid birder. Came to visit us in Hong Kong for the more-or-less sole purpose of catching the migratory birds in the Mai Po marshes. What was the occasion of your birding on Lake Monona?
Anarch, so a logician, eh? Have you ever seen Roz Chast’s “Unscientific Americans?”
“If p, then q. With jelly on it!”
Another favorite (not logic, but still math): “Dressed to the nines, dressed to the sixes, dressed to X the unknown.”
I think you (because you are from the UK) and Katherine (because she is so young) dramatically underestimate the effect of the controversial Supreme Court decisions of the late 1960s and early 1970s. Basically a huge percentage of the population woke up in 1973 and all at once realized that as far as they were concerned the Supreme Court had gone absolutely crazy. There had been signs before, but Roe v. Wade was a huge wakeup call to conservatives that not only were they not doing great in the legislatures, but that the even the Constitution was being ripped to shreds by judges who weren’t willing to bother with the text. Since then, millions of Christians who are normally fairly leftish have voted Republican. My parents and almost all of their friends are among those. They have been working 35 years to get the Supreme Court and lower courts back to sanity. This is going to be a big ugly fight.
Anarch,
My wife likes to spend a few days in the Dells on spring break. Drove back thru Madison. Tried to take the Merrimac Ferry. D’oh!
Saw eagles at … Sauk City? or wherever the bridge is.
I would have gone to Door County (fed up with southern Wisconsin, the cow peed all over when my wife tried to milk it on Monroe’s Cheese Days!), but Green Bay is still is iced in at that time. It’s kind of an in between time of year: Nobody’s firing up “the sled” anymore, and the damned ski teams haven’t really cranked up yet. GO AQUANUTS! (Twin Lakes) JANESVILLE ROCK-AQUA-JAYS SUCK!
Love your new quarter: Cow, Cheese, Corn.
Illinois had Abraham Lincoln and Skyscrapers, etc, but don’t feel that bad, it was a technicality that they couldn’t put a living quarterback (Favre) on a quarter’s back.
Come on down and visit Illinois. Bring plenty of change for the tollway. We charge double for folks who don’t have the I-PASS! Oh yeah, don’t ever call the interstate a “freeway”.
By the way, may amended list of principles:
A Strong Defense of America
A Culture of Life
An Ownership Society
The Spread of Freedom
Support of, and Defense of, the Family
OPEN HUNTING SEASON ON KITTY-CATS
I hope we can at least all agree on that.
“Basically a huge percentage of the population woke up in 1973 and all at once realized that as far as they were concerned the Supreme Court had gone absolutely crazy. There had been signs before, but Roe v. Wade was a huge wakeup call…
Let’s try a thought experiment here: How could the Court have decided the other way?
Any ‘what-if’ take on Row has to start with Griswold, where the Court first referenced a right to privacy – and while that decision outraged the anti-sex crowd, I’m not sure today you could find support anywhere outside RW/fundie circles for recriminalizing birth control.
Having established privacy as a Constitutional right in Griswold, the Court couldn’t turn around and nullify it in Roe. What was left? The notion, enumerated by Scalia, of an overriding State interest in protecting fetal life?
One, there’s no basis in the Constitution for that. I’m not sure you could even make a case for an overriding State interest in preserving all human life, as the RW demanded during the Schiavo case. That’s an idea with lots of unintended consequences, even in the early 70’s. Like, laws mandating police monitoring of miscarriages (as Virginia recently tried to do), disbanding the military, ending the death penalty, and requiring full federal funding of healthcare for all citizens from birth to death, with no stone left unturned and no dollar left unspent to ‘preserve all life no matter what.’
And now, the way medical science has marched on, it’s even more impractical. What about all those frozen embryos in fertility clinics that never get used? ‘Pro-lifers’ insist they mustn’t be used for embryonic stem cell research, but are otherwise silent about what ought to be done with them. An ‘overriding State interest’ in preserving fetal life would mean finding wombs for them all, or closing down the fertility clinics.
So the claim of overriding State interest fails of its own impracticality and contradictions.
What’s left? Any decision the Court made would apply to the whole country. They were going to wind up federalizing abortion policy, one way or the other, whether they wanted to or not.
And, as has been pointed out, states were already legalizing abortion or moving towards legalizing abortion.
A SCOTUS decision against abortion would’ve stopped that in its tracks. This kicks out the argument that abortion laws should be decided by each state.
Privacy rights were already established; an overriding State interest in preserving life can’t be… However much you dislike Roe, I don’t see how the Court could have ruled otherwise.
The Court could have easily ruled that there wasn’t a Constitutional right to abortion. The reason the opinion was so shocking is because the idea that there is a Constitutional right to abortion is not clear at all.
“I’m not sure today you could find support anywhere outside RW/fundie circles for recriminalizing birth control.”
That doesn’t make it a Constitutional issue now does it? That means it is a generally accepted issue that could quite easily be dealt with in legislatures.
“The notion, enumerated by Scalia, of an overriding State interest in protecting fetal life?”
Is the idea of the state having an overriding interest in protecting life so crazy? Ever heard of child protection laws? Heard of workplace protection laws? Note Scalia is not suggesting a Constitutional right, but rather the ability of states to regulate in the area if they want.
“So the claim of overriding State interest fails of its own impracticality and contradictions.”
You talk about it as if there is something in the Constitution that the state has to override in order to do that. There isn’t a general presumption that States can’t do anything that has to be overriden in order to pass laws.
“What’s left? Any decision the Court made would apply to the whole country. They were going to wind up federalizing abortion policy, one way or the other, whether they wanted to or not.”
Could you be more condescending and wrong at the same time? The court could have quite easily ruled that abortion was not a Constitutionally mandated privacy right and thus no federalized policy was mandated by the Constitution. Then each state would make their own decision. Like say, MA marriage law.
I tend to agree with your overall thrust that the process has been ratcheted up over the years and that eliminating the filibuster for judicial nominees isn’t necessarily that more radical than “Borking” or “blue-slipping” or “filibustering” or what have you. However I disagree that any of them are severe enough to merit the term “nuclear.”
What would qualify as “nuclear” in my mind is if President Bush or a governor took a position similar to former President Jackson and outright said that “the courts have made their decision, now let them enforce it” over a particularly radical decision by the court (e.g. striking down DOMA, ruling that “under God” in the pledge of allegiance violates the establishment clause, etc.). There has been a growing movement to reign in the judiciary for some time now, recently over what is seen by many as a (somewhat overblown IMO) trend towards interpreting federal law based on trends or rulings in foreign jurisdictions. For now though (thankfully) the commitment seems to be to work within the established framework* rather than outright rebel against it.
Should that change, then we can talk about “nuclear” options.
* Even though many think that “framework” has been twisted and expanded far beyond its proper boundaries.
Well there’s not. If there was a constitutional ground for requiring 60 votes, then we’d have a provision in there that it requires 60 votes to confirm judicial nominees (as we do requiring two-thirds to ratify a treaty). We don’t, so it’s perfectly constitutional* to confirm judicial nominees without having 60 votes or even as few as 51 votes.
End of story.
* However as an aside, nor is it unconstitutional for the Senate to adopt a rule requiring a supermajority to confirm judicial nominees or even to refuse to vote on a particular nominee. They can pretty much set up whatever requirements for voting they like and they are just as free to change those requirements as has been done in the past and as may happen in the future.
Re: April 9, 2005 02:31 AM
“reign” should be “rein” of course
Agreed that there’s no constitutional issue here. There’s a reason, though, for the seeming insistence from people like Mr. Bird that there must be.
I’m not a Senate rules maven, by any means, but it’s my understanding that the actual execution of the nuclear option requires an open and undeniable violation of Senate rules, by the majority. There’s no reasonable reading of the rules, afaik, that allows one to say that the filibuster/cloture requirement is uniquely inapplicable to judicial nominations. Yet the “option,” as currently proposed, is that some Senator asks the chair to clarify that this is in fact the case, and a simple majority agrees. (A simple majority cannot amend the rules, but can endorse an interpretative point of order — maybe Mr. Cheney’s ruling is also required, there is where a maven would be helpful).
Maybe its an emanation from a penumbra, or something, but somehow there has to be something, external to the rules, that legitimizes what is otherwise a vote to call black white.
Red Queen logic, just like the accusation that federal judges who refused to make up a constitutional right for the Schindlers were “judicial activists” or “legislating from the bench.”
I’d be interested to hear from a proponent exactly how hard they think they can screw Dems if the latter suggest the absence of a quorum at regular intervals through the legislative day. Such suggestions are perfectly legitimate, have been made by all parties since the promulgation of the rules, and if there are 5 senators on the floor and one says “I don’t think we have the constitutional minimum here to do Senate business” it hardly seems to me that ordinary folks are going to buy that he/she is being some kind of unreasonable obstructionist. If the Repubs want to conduct business in a nuclear winter, they have to show up on the floor. It’ll cut into their fundraising time, but that’s hardly of concern to the ordinary voter. Sure, committed followers will buy it, but I’m not seeing much potential for resonance.
That’s the funniest thing about the coming nuclear war: the Repub part depends on pretending that the Constitution requires something it clearly does not, while demonizing the Dems for asserting that which IS explicit in the Constitution. All in the service of finding people who will, supposedly, follow the letter of the Constitution, rather than their own policy inclinations.
Then you would be wrong since there is nothing in the Senate rules which requires 60 votes to stop debate, it is simply a tradition that the Senate is free to dispense with at will. Just as they were free to dispense with the tradition of not filibustering judicial nominees that have enough votes to be confirmed.
What on earth are you talking about? The cloture rule is Rule XXII of the Senate Rules. You just linked it.
Like Thorley just stated, this is a cloture rule- it can be changed. Is it part of Senate tradition to keep it intact…yes
But it was also part of Senate tradition that the minority party never filibustered judicial nominations.
So…change the rule.
Thorley: Then you would be wrong since there is nothing in the Senate rules which requires 60 votes to stop debate, it is simply a tradition that the Senate is free to dispense with at will.
Fitz: Like Thorley just stated, this is a cloture rule–
Not that it’s important, I just get confused sometimes.
Ya ..me to
(no really)
This is like a arms race or something..
each side needs to up the stakes to checkmate the other side.
Can anyone defend the nominees on their merits? If they are worthy of becoming judges, then please make that case based on their histories and experiences. If they cannot be defended on their merits, then they shouldn’t be appointed.
It is partisan politics to insist that certain individuals get appointments merely because they are the individuals put forth by a party or a President. Congressional oversight is written into the Constitution to weed out bad appointments. It is incumbent upon the backers of these nominees need to make the case that they are good candidates. Which they won’t do because they can’t. They are horrible candidates.
The principled, Constitutional thing to do is to block the appointment of extremist candidates. Responisble Republicans in Congress will side with the Democrats on this. If there are any.
Well, I’m really lost. I said that the rules provided for a majority to 60 to cut off debate, and that there is no provision in the rules that can reasonably be read to restrict this provision to judicial nominations.
Thorley’s link proves me correct.
I said a simple majority may not amend the Senate rules.
Thorley’s link proves me correct, inasmuch as it takes a two thirds vote to cut off debate on amending a rule.
This is why the nuclear option that is under actual consideration is not an amendment to the rules. It is a different procedure entirely: a pretense that what is in the rules is either (a) not there (which actually seems to be what Thorley is saying, notwithstanding Fitz’ rescue attempt) or (b) that it does not apply to judicial nominations. Obviously, nothing in the language of Rule XXII restricts the applicability of the Rule to one kind of nomination over another, or to bills but not nominations. But the majority will pretend that it does, and get a simple majority to endorse this.
Those of you who cannot tell the difference between a rule and a tradition — especially in a context where the Constitution directs a body to “determine the Rules of its Proceedings — need to think again about what it means to live in a civilization organized under the rule of law.
Of course the Senate is free to change its rules, pursuant to the provisions therefor in its rules of procedure.
I suppose individual members — even a majority — are free to pretend that black is white. They should not expect to be taken seriously, though, as defenders of the written word, and should expect to see every conviction, every order, of a judge “confirmed” in express contravention of the Senate’s rules to be appealed. This is not something Dems would be doing, it’s something defendants would be doing — and Exxon will do it too, if it gets a bad decision from a judge who’s authority is in doubt.
Can anyone defend the nominees on their merits? If they are worthy of becoming judges, then please make that case based on their histories and experiences. If they cannot be defended on their merits, then they shouldn’t be appointed.
The easiest way to accomplish this is to have, like, an actual confirmation hearing.
I was in error, Rule 22 does in fact require a three-fifth’s majority to end debate. In which case unless there is something else in the rules I’ve missed*, I don’t see how the Majority can change the cloture rules barring either (a) changing them by adopting different rules at the beginning of the session or (b) amending them with a two-third’s majority vote.
My apologies to Fitz if he relied on my incorrect reading of the cloture rule.
* I have heard that there might be something in the rules regarding judicial nominees that could provide the necessary window for the “nuclear option” but I’ll reserve comment for now.
Read CharleyCarp’s 8:46 for an explanation of how the nuclear option allows a simple majority to amend the Senate Rules so long as they are willing to do so in bad faith.
Seb: “The court could have quite easily ruled that abortion was not a Constitutionally mandated privacy right and thus no federalized policy was mandated by the Constitution. Then each state would make their own decision. Like say, MA marriage law.”
No, it could not have done that. The decisions in Roe and the decision in the Massachsuetts Supreme Court invoke very different authorities.
The Roe decision was based on US Constitution rights to privacy and due process. Here’s the salient part of the Roe decision:
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term. Pp. 147-164.
You can’t discuss Roe without also discussing Griswold. Griswold established the right to privacy with numerous precedents (not, as the Right holds, out of thin air), all invoking 1st and 14th Amendment rights to free expression, free association, freedom of conscience, and due process. Having grounded its decision in the US Consitution, the Court established a US (not state) Constitutional right to privacy and due process in Griswold. Having done that, and having established that the Federal right to privacy, it had to base its Roe decision on the the Griswold precedent. It couldn’t have done otherwise, not without violating its own precedent.
The Massachusetts Supreme Court, OTOH, did not invoke the US Constitution, just the Massachusetts Consititution.
The easiest way to accomplish this is to have, like, an actual confirmation hearing.
This would be a great idea if Congressional Republicans were interested in a debate on the merits of these appointments. Thus far the overwhelming evidence is that they are interested only in rubber-stamping whoever Bush nominates.
Under these conditions, and with the simple majority that the GOP currently has, the confirmation hearings are a joke–the Senate equivalent of a kangaroo court. No matter what evidence Democrats produce about the unsuitability and extremism of these nominees, most Republican Senators will simply nod and say, “That’s nice, so when can you start?”
With a majority acting in bad faith, the filibuster is the only legal remedy the minority has to put a brake on extremist appointments and legislation.
“State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”
CaseyL, I’m rather familiar with what the Constitutional claims made by the Supreme Court Justices in Roe. Roe is not an inevitable result from Griswold (which was deeply linked to marriage). Your summary before Roe revealed the truth like Joseph Smith from the angel of Moroni is incorrect as to the verb ‘violate’ and the phrase ‘which protects’. Saying the words ‘its unconstitutional’ about something not mentioned in the constitution, not closely related to something mentioned in the constitution, not closely related to traditional understanding of the constitution, and in direct opposition to how business was actually conducted for more than a hundred years doesn’t make it so. Even many liberal lawyers will admit that it was a crappy decision, they just try to suggest that it was an unusually crappy decision. It was not inevitable. It was not obvious. It was perfectly reasonable for about half the nation to be utterly shocked by it. It is too bad there aren’t alternate universes to look at. In a Roe doesn’t pass universe, would the Christian Right have been energized into power? Maybe the underlying tinder was there and it was a convenient spark. But maybe not. Roe was and is an almost perfect symbol of arrogant judicial overreach which is not well grounded in the Constitution and which has perverted the debate about an important issue well out of the bounds it would have been settled in if dealt with democratically. It may be that liberals will someday have their Roe, but if you are thinking the dismay about Bush v. Gore comes anywhere near that about Roe, you are underestimating the effect of Roe by a huge factor.
With a majority acting in bad faith, the filibuster is the only legal remedy the minority has to put a brake on extremist appointments and legislation.
What I don’t get is how anybody, even a well trained lawyer such as you or Katherine, can determine that THE MAJORITY of Senators are going to act in bad faith. I can see how one or two, maybe even a handful might do so. After all they are politicians, and most of them la—–, er, attorneys. But speaking as just a regular guy, I don’t see how anybody can have some sort of special insights into their motivations and intentions. This is certainly not obvious to me.
What I don’t get is how anybody, even a well trained lawyer such as you or Katherine, can determine that THE MAJORITY of Senators are going to act in bad faith.
First of all, IANAL.
Second of all, I base my opinions on what has thus far been the most reliable predictor of future behavior: past actions.
Look: the GOP right now has a simple majority in the Senate. With fewer exceptions than I can count on one hand, they are all of them going to vote to confirm whoever Bush nominates–whether out of party loyalty, reflexive opposition to Democratic resistance, deference to the President, or some combination thereof. Feel free to peruse the public record–they’ve all either said as much, or demonstrated it through their voting record.
That isn’t a confirmation hearing–it’s a rubber stamp for Bush’s decisions. And the /demonstrated/ unwillingness to critically vet these appointments is why I say they are acting in bad faith.
1. The president can nominate a ham sandwich.
2. The appropriate committee can send the ham sandwich to the floor.
3. The minority can filibuster the confirmation of the ham sandwich.
4. The majority leader can claim that Rule XXII is unconstitutional as applied to judicial nominations.
5. A bare majority (plus the VP?) can agree, and then vote on the nomination of the ham sandwich.
6. The minority can then suggest the absence of a quorum every time there are fewer than 51 senators on the floor.
7. The minority can call for a vote on any request for which a vote is required, under the rules.
It seems to me that actions 2,3,6,7 can all be undertaken in perfectly good faith. Action 1 is questionable, but not germane in the Senate. Actions 4 and 5 require a willing suspension of faith. To the extent that anyone is arguing for 5, they are asking the majority to act in bad faith. Unless, of course, someone can come up with a coherent theory for unconstitutionality of Rule XXII that meets any kind of laugh test at all. Mr. Bird’s game effort notwithstanding, I haven’t heard it yet.
Of course, having the dispute is the very point of the nominations. Look at Justice Brown’s nomination, for example. No one is complaining that the DC Circuit is overworked. No one thinks it is some kind of liberal bastion.* No one thinks she, a California judge, has some kind of special contribution to make on this court. She is nominated because she is a very conservative black woman, and the WH thinks it good politics to make Dems oppose a black woman.
* One of my favorite imagined interchanges on the subject arises from Sen. Specter’s frequent assertion that the disputed nominee(s) to the Ninth Circuit should be confirmed to bring ideological balance to that court. I’m waiting for whichever interviewer he says this to to ask him, “So, when can we expect the President to start nominating liberal judges to the Fourth Circuit?”
Also, the nuclear option requires a majority of Senators to make a vote claiming to hold a position of fact that they do not in fact hold, that Rule 22 doesn’t apply to judicial nominations. The vote is not supposed to change the meaning of Rule 22, but to identify what the correct current interpretation of the cloture rule is — the nuclear option requires the Senators to smuggle in a rule change by falsely claiming that the rule already says what they want to change it to.
You can argue that it’s worth it, but it’s hard to argue that that vote, if it occurs, doesn’t involve conscious bad faith on the part of the Senators voting.
I don’t agree with SH on his description of Roe, but he’s right on the money with respect to the impact Roe has had on a large segment of the population.
I just don’t think this kind of thing is avoidable. “The Liberals” don’t file cases, individual litigants do. The court can’t and shouldn’t decide cases concerning an individual’s constitutional rights with reference to whether or not millions of people will disagree. Or be energized.
Now, I think they did do so when they decided to take Bush v Gore. I think they thought they’d be greeted as liberators, with flowers and sweets, for ending the crisis. (IMO, they should have left the matter to the House, where Bush would have won). It didn’t work out that way for them, but luckily the people who lost respect for the individual justices over that case are now forced to defend the judiciary as a whole against the serious attacks that are being mounted.
If “bad faith” includes recklessness or negligence or willful ignorance about the harmful consequences of your actions, or a tendency to too-easily convince yourself that the ends justify the means, then it is totally possible for a majority to act in bad faith.
If “bad faith” only includes consciously harming people for the sake of harming them or for your own re-election, then a faction does not need to be acting in bad faith to be dangerous.
Sebastian, I was agreeing with you more than not, but this line shows as deep an ignorance & refusal to take seriously the way liberals think about Constitutional law, as Casey shows towards conservatives:
“It may be that liberals will someday have their Roe, but if you are thinking the dismay about Bush v. Gore comes anywhere near that about Roe, you are underestimating the effect of Roe by a huge factor. ”
I’m not sure the dismay about Bush v. Gore was less in intensity. It was mainly shorter in time, because:
1) the holding was confined to its facts
2) it was thought to be a politically unproductive from the beginning, and even more politically unproductive as well as kind of unpatriotic after September 11
3) the injustice of the result dissipated when President Bush was legitimately elected to his second term.
4) the Article III courts’ and U.S. Supreme Court’s honorable decisions in cases about the war on terror, and the inadequate oversight of executive abuse of power by the press or the Democratic opposition, and the indifference to executive abuse of power that Congress has showed, have reminded liberals why we have
I can give you a long list of Supreme Court decisions whose reasoning I think is as bad or worse than Roe’s, whose consequences I think were as bad or worse, whose errors seem less likely than Roe’s to be based on a good faith error. I am not just talking about Plessy & Lochner & Dredd Scott & Hamer v. Dagenhart & the Slaughterhouse Cases & the Civil Rights Cases & Bradwell & Schenck & Abrams & Korematsu & Skinner v. Oklahoma. I am talking about decisions made in the last 20 years. I find the case law on immigration and the right to counsel and the death penalty and procedural due process and determining intent to discriminate in equal protection to be about as screwed up and results driven as you find the privacy decisions. And if you let me start looking at Justice Scalia’s and Justice Thomas’ decisions in cases where they couldn’t convince the other judges, there’s just no end to it.
I don’t expect you to agree with me, but I expect you to acknowledge that I’ve thought this through at least as seriously as you have and come to a conclusion that’s close to the opposite of yours. You tend to be unwilling to do this. Until this changes, you’re not really going to understand how liberals think about Constitutional Law, and you’re not going to be able to point out the flaws in their arguments in a way that has any chance of convincing them–we’ll just be talking past each other forever. I’ve given you some idea, by now, not only why I think Scalia and Thomas are wrong, but of how I think you could steer between their mistakes without making the mistakes of Earl Warren and William Brennan and Anthony Kennedy. You have never done so for Antonin Scalia or Clarence Thomas or Robert Bork–you just tend to say, well, the liberals are worse. That’s fine, but you had better show exactly WHY your flawed theory is always better than theirs, or expect them to get annoyed when you assume that anyone who deviates from the federalist society party line is making it up.
“I don’t expect you to agree with me, but I expect you to acknowledge that I’ve thought this through at least as seriously as you have and come to a conclusion that’s close to the opposite of yours. You tend to be unwilling to do this. Until this changes, you’re not really going to understand how liberals think about Constitutional Law, and you’re not going to be able to point out the flaws in their arguments in a way that has any chance of convincing them–we’ll just be talking past each other forever.”
Your understanding of Constitutional law is how liberals in general think about it? I seriously doubt that. Your approach to Constitutional law as outlined in our previous post on the subject is how liberals in general approach it? I am absolutely certain that isn’t true. When I’m arguing with YOU about jurisprudence that is one thing. But your approach is not the liberal approach, it is not the approach of your hero Brennan and it certainly is not the approach of ends-justifys-the-means justices like Marshall was when he was on the court. Your approach and the approach of the liberal judges on the Supreme Court and lesser courts (especially the 9th) have very little in common.
“3) the injustice of the result dissipated when President Bush was legitimately elected to his second term.”
Perhaps “less obviously illegitimately” – I think the conspiracy-theory crowd in making some inroads on the “fair election” thesis. On the other hand, I think the popular vote should decide anyway.
On the other hand, I don’t see the injustice of the result dissipating – in fact, I think 2000 would have been less awful if Kerry had won in 2004, getting the country back to the path it should have been on.
For what it’s worth, among people I know it’s hard to overstate the impact of Bush v. Gore. And it wasn’t that e.g. we didn’t like the results; that would probably also have been true had it been turned over to the House, but we wouldn’t have minded. It was the fact that the decision seemed indefensible, especially given the clearly articulated views of the justices in the majority, which seemed to leave no plausible interpretation other than: it was politics. And the impact would have been much less had we not respected the court — where, again, this doesn’t mean that we agreed with it (Bowers v. Hardwick, anyone?), but rather that we thought they would not play politics with something this serious.
Speaking for myself, the thought that kept running through my head was: I thought that whatever might be true of members of the other branches of government, the justices on the Supreme Court were grown-ups. Most of them, at least. But I was wrong.
I was completely flattened after Bush v. Gore. The only way I could get myself going again was to go out and print up bumper stickers that said ‘Don’t blame me; I voted for Justice Ginsburg’ and give them to all my friends.
You know, hilzoy, I generally don’t end responding to your posts, mostly because I can’t think of anything to say other than how entirely I agree with them. I was going to quote a bit of the above and expand on it, but I couldn’t figure out what to quote short of the whole thing. So:
What hilzoy said.
Katherine – I think I remember you posted a critique of Roe here at ObiWi, and I’m trying to find that comment. I’m not asking you to reiterate what you said, but if you perhaps remember which topic or even just which month you posted it, could you tell me, so I can find it? Many thanks.
I am not going to dive into the minutiae of Roe v. Wade or Bush v. Gore, but I want to point out that criticism of Democrats or liberals for ends-justify-means behavior wears a little thin these days.
“The ends justify the means” has been the entire story so far of the Bush administration. From the tax cuts, to Iraq, to the political campaign, to private Social Security accounts, the ends were chosen first and the means came afterward. Means that meet with public disapproval are discarded, justifications shift depending on what sells.
The demonization of liberals codified by Newt Gingrich back in the 1990s was likewise a deliberate choice of foul means to a perceived good end, and Tom DeLay’s fund raising behavior is the same.
I wrote above that I don’t believe President Bush has malign intent. That’s just my opinion. I do think that he believes what he is doing is right. I don’t know whether this is how he justifies his actions to himself, but I can well imagine it.
It was the fact that the decision seemed indefensible, especially given the clearly articulated views of the justices in the majority, which seemed to leave no plausible interpretation other than: it was politics.
For me, the breaking point was that the decision denied its own utility as precedent. I don’t think there’s been a similar ruling in the history of the United States (though I could of course be wrong). It was so clearly, obviously motivated by transient political concerns — and the denial of precedent, to me, was as close to admitting this as one can get without actually saying it — as to beggar the imagination.
SebastianH: There had been signs before, but Roe v. Wade was a huge wakeup call to conservatives that not only were they not doing great in the legislatures, but that the even the Constitution was being ripped to shreds by judges who weren’t willing to bother with the text.
I think this has been amply answered further down by others.
You know I disagree with your passionate support for women being forced to choose between unsafe illegal abortions or bearing an unwanted child, and in my view no genuine pro-lifer could possibly do other than support safe, legal abortion (along with, of course, the necessary socialist/liberal measures to ensure that as few abortions as possible occur). Women have sufficient political power in the UK that it seems to the highest degree improbable that the UK could ever return to the days of women dying in illegal abortions – it may be a postcode lottery whether women can get a safe legal abortion on the NHS or have to pay for it, but it’s available, and women as far apart politically as Margaret Thatcher and Ann Clwyd are in solid agreement that this is how it should be. (Nor is it purely a male-female split; no one with concern for human life could possibly wish to return to the 1960s when the commonest cause of death among young women was illegal abortion.)
It’s kind of sad that in the US, instead of being a pure human life issue, as it was in the UK, it had to be a right-to-privacy issue. Human life should be worth more than that – it should have been an issue to more people that women were dying because of the laws making abortion illegal and therefore unsafe. But it wasn’t, evidently – and at least the right law was passed, saving lives, saving future lives: illegal abortion was more likely to make women sterile than to kill them, though women did die.
Which is to say, yes, if you feel Roe vs. Wade was decided the wrong way, that women ought not to have a Constitutional right to privacy, well, you may have a point – others have argued otherwise. But I am pro-life – really pro-life: and I feel it more important to save lives by making abortion safe/legal than it would be to struggle for decades and deaths trying to convince a basically conservative legislature that it’s necessary for women to have access to safe/legal abortion.
“Speaking for myself, the thought that kept running through my head was: I thought that whatever might be true of members of the other branches of government, the justices on the Supreme Court were grown-ups. Most of them, at least. ”
That was the realization that conservatives came to in 1973 about the Supreme Court and nothing since then has diminished the impression.
That was the realization that conservatives came to in 1973 about the Supreme Court and nothing since then has diminished the impression.
Then you’ll be pleased to note that a group of conservatives are talking about impeachment. Of course, some of them are quoting Stalin while they make veiled threats towards Justice Kennedy, but I’m sure that’s a small price to pay for an omelette.
Oooh. . Stalin’s a great role model. Remind me to post my thesis sometime on great moments in 20th century anti-intellectualism, including Stalin, Hitler, and all the dorks who use the term ‘coastal elites’.
With all due respect, Sebastian, while I don’t myself think Roe is a particularly good decision, I think it’s a decision taken in good faith, with whose reasoning I don’t agree. I have felt that way about a lot of decisions, including some where I didn’t just disagree with the reasoning, but also found the conclusion wrong and offensive. (See, again, Bowers v. Hardwick.) That never made me think the SC wasn’t grownups. It was only when they made a decision for what seemed to me to be reasons that had nothing to do with their making their best efforts to interpret the law — and I didn’t see how else to read Bush v. Gore — that I concluded that.
After lighting into Katherine for conflating her views on the constitution with ‘liberal views’ (3:19pm) I am amused that you give us the ‘conservative view’ of Roe v. Wade, though to be fair, you did cover this ground at 11:52. I’m sure you believe that with the slap in the face delivered by Roe v. Wade, all conservatives came together with one voice to rise up and challenge the teetering liberal edifice, but I would suggest that what conservatism has done is stitch together a number of contradictory positions about how government functions to form a patchwork coalition (Does ‘Contract with America’ rings a bell? Check out Newt Gingrich’s views on abortion)
What Roe v Wade did do was provide a minority with an issue that they could then expand into a worldview of being constantly put upon and looked down on, and use that feeling to fuel political action, a feeling which was subsquently harnessed by the Republican party and coupled with a ‘let’s keep government out of our lives’ (essentially philosophically opposed, but neither horse looks at the other too closely as long as they are going in the same direction). 9-11 added (if I could mix metaphors) a gigantic roll of duct tape to hold the whole enterprise together and push any day of reckoning far into the future. As I said, you may truely believe that the population of the US, contrary to almost all the other OECD countries, feels that the right to life trumps a woman’s right to choose, but from my seat, the use of the pro-life is simply the politics of convenience. Unfortunately, it is also playing with fire, and someone is going to get burned.
I think that is extremely, extremely unlikely that any Supreme Court Justice would write a decision with the subjective belief that he was being dishonest about the clear meaning of the Constitution, because he needed to do this to reach a desired result.
I also think that it is extremely, extremely unlikely that any Supreme Court Justice ever has completely removed his views of morality from his views about Constitutional law.
Rather: it is easier to see the logical flaws in decisions when we dislike the outcome, than when we like the outcome. It strikes a dissonant note, a “THAT can’t be right.” So if we dislike the outcome we are apt to examine it with a fine-toothed comb. If like the outcome we are apt to skip steps. The idea that the Constitution allows segregation, or bans on misgenation, or torture, or denying the franchise to gay people–a liberal has an intuitive sense that no, it can’t possibly mean that. The idea that the Constitution forbids abortion or gay marriage or capital punishment–a conservative has an intuitive sense that no, it can’t possibly mean that.
These intuitions aren’t bad things and they aren’t just matters of policy preference. They come from your own understanding of the meaning and purpose of a vague Constitution. They can protect you from errors just as much as they can lead you into them. They can turn on your bulls**t detector. You need that, when you’re dealing with something like the torture memo. Trying to eliminate them, usually makes you a worse judge rather than a better one–you just end up being more dishonest about them.
The tricky part of judging to find a system that makes it harder for you to skip these steps without realizing it–to make sure you’re intuiting the conclusion before you can fully articulate it, rather than assuming the conclusion that you like. Different theories of jurisprudence are better and worse at this. You have to guard against both theories that are “accurate but not precise”–a pure balancing test that lets you make policy decisions & dress them up as law; or “precise but not accurate”–a bright line rule that draws a very neat line in a very stupid place. But based on what I’ve looked at, in general the variation within the range of judges within one theory, swamps the variation between different theories. Originalism is an exception to this, because all you’re supposed to do is determine whether something was legal in 1789. But people who call themselves originalists can still be miles apart. Scalia has come up with a crap theory of interpretation but he’s usually pretty scrupulous about applying it. Thomas has come up with an even crappier theory of interpretation, but he too is usually pretty scrupulous about applying it. But, John Yoo, the guy who wrote the torture memo, is an originalist too. If someone is very good at self-deception, there may be no legal theory that can fix this.
Sebastian seems to have the sort of view of Constitutional Law that I came into law school with, and which I found increased my first year when I read the criminal & civil procedure, but dissipated by the time I took Con Law. When you take Con Law you realize that it’s almost impossible to do this perfectly, and even the best of them f*** up some times.
People can have a hard time with that sort of ambiguity, though. There seems to be an idea that the answer must be either:
1) Absolutely yes
2) Absolutely no
3) I don’t know, whatever you prefer.
Either a news network is completely free and pure or any taint of ideology, or they’re all the same & you might as well just listen to the one who tells you what you want to hear. The idea that it’s one thing to start with your mind made up and another thing to end with it made up after careful research–this does not seem ot be comprehensible. Either a politician has never told a lie in his life & never even considers his own re-election, or they’re all the same. Either you believe that life begins the moment the sperm hits the egg, or you’re a baby killer. The possibility that you honestly disagree about when life begins is not accepted. The possibility that not only is there no single moment when life begins, but that it takes nine months–that’s definitely not okay.
It’s bizarre to me. The idea that you can honestly seek the truth even if you do not find it, it completely intuitive to me. The idea that art and music vary in quality, and yet there is also room for taste, is completely intuitive to me. The idea that people are not so much good or evil as better and worse, and sometimes much much better and much much worse, and sometimes so good that it’s hard to see the bad and sometimes so bad that it’s hard to see any good–again, this is totally intuitive to me.
But it is apparently not intuitive to a lot of conservatives, because they seem to just jump between complete absolutism to complete relavitism and back depending on what serves their interest better. It’s really strange.
It’s not only conservatives who do it. Liberals do it with religion–the idea that Dominionists and the Catholic Church are indistinguishable as long as they agree about abortion or gay marriage, as if you can really dismiss John Paul II’s moral theology as easily as you can Jerry Fallwell’s or even Rick Santorum’s. As if the religious beliefs that inspired Chartres and the Pieta had has no more claim on truth or respect than the church responsible for the Left Behind books.
The idea that religion is just a powerful thing like any other, that can be used for good or evil like any powerful thing–this seems not to occur to us.
Sebastian also doesn’t actually do this all that often; he just seems to do it about Con Law because he has a really intense dislike of some decisions of the Warren court. I used to feel that way too, the year after Bush v. Gore.
Let’s play a game: name your most admired Supreme Court justice of all time & on the current court, and I’ll find a lousy decision, and your least admired Supreme Court justice of all time & on the current court, and I’ll find a good decision.
In case you want to play this too, on the current court I go with Thomas as the worst and Souter as the best. All time is tougher; I’ll just pick a good one and a bad one: Louis Brandeis and for the sake of symmetry, James McReynolds. (I can’t remember which judges were responsible for which crappy decisons during that era, but McReynolds was the one who would leave conferences when Brandeis walked in because he was such a dirty, dirty Jew.)
Brennan isn’t my hero, he’s the one I have a soft spot for. It’s not the same thing, though it’s not unrelated, and it has as much to do with him as a person and as a writer and the effect of his decisions on peoples lives as on him as on his intellectual purity. Yes, I would rather someone make a legal error that leads him to the conclusion that it is never permissible to “treats member of the human race as nonhumans, as objects to be toyed with and discarded”, than a legal error that leads him to the conclusion that compulsory sterilization of the mentally retarded is just dandy because “three generations of imbeciles in enough”. Sue me.
You may claim that these things don’t affect your opinion of a justice. I flatly don’t buy it. Roe doesn’t haunt conservatives because it’s the worst argued decision in Supreme Court history. If you accept Griswold, Roe is not self-evidently ridiculous. The flaw just isn’t that obvious. You don’t like it because you think the result is morally and constitutionally indefensible.
And yes, courts have a higher duty to get it right when people’s lives are on the line. But if you’re using that standard, rather than grading decisions like a logic paper, well. Suddenly the dreaded Warren Court does not look so terrible.
The decision in Furman that you so despise, I think is wrong, but it’s not actually an easy case. Whereas your argument against it, I find totally unconvincing, because you just won’t admit the Ninth Amendment existing. And I can’t remember the other case you have a vendetta about–some affirmative action case I think–but I seem to remember, because Hubert Humphrey promised that the 1964 Civil Right Act didn’t require quotas, it was absurd for Brennan to conclude that it didn’t forbid quotas. If I’m remembering correctly–Sebastian, that’s just not even a colorable argument.
I find his theory of jurisprudence to actually be quite similar to Scalia’s: lovely if you accept certain assumptions, indefensible if you don’t. Brennan’s assumptions are much, much, much better than Scalia’s, legally and morally, but they allow for more sloppiness in application. Not as much as O’Connor or Kennedy, but a bit more. But I’ve always preferred “less precise but more accurate” to “more precise but less accurate.”
You say, I know, that Brennan’s assumptions are driven by his policy preferences. I say: so are Scalia’s. Scalia just hides it better and is better at shouting down people who disagree with him.
Once again, I think you have turned aside a question about how YOU think courts should decide in favor of an attack on a liberal justice you don’t like. Do you still think that “was it legal in 1789” is a good way to answer the question of whether something is constitutional? If so, why?
And. Given the way Scalia flaunts his decisions in Hamdi and the flag burning case as definitive proof that he is free from any taint of personal bias–those are admirable opinions. But given that on the death penalty and abortion, probably the two most divisive constitutional issues of the day, I have come to a conclusion I don’t like (I especially dislike the conclusion on the death penalty)–I get very tired of being assumed to be making stuff up because my best understanding of the Constitution corresponds pretty well to my views on gay rights & women’s rights & some right to bodily integrity & against unlimited executive power. You don’t do it so much anymore, but it took months, and it took me figuring out my own personal theory of jurisprudence. Articulating the basis for what’s guiding does help you do it better, but the principles guide you even if you can’t yet fully articulate them.
p.s. one thing I’ve not yet figured out is how to think about stare decisis, especially what questions to regard as “settled law” & what ones not to.
I tend to think that:
–a decision is settled law if it produces a clear result even if the test’s not perfect, like Miranda v. Arizona. But in stuff like the death penalty & the establishment clause, where you just have this complete mess that contradicts itself 8 ways or has you adding aliens and Teddy Ruxpins to nativity scenes, you can say: okay, look, here’s how we’re ACTUALLY going to do this.
–Do you treat the question differently depending on whether your vote can accept the outcome? Say that the Supreme Court makes a bad decision your first year on the Court, and you’re the sole dissenter. Say another very similar case comes along in another year. Do you just say “I dissent for the same reasons given in the last case”? Or should join the majority unless you think it was really really awful.
I tend to think you should still dissent. Otherwise crappy decisions get entrenched right away & the majority is determined less by the force of people’
s arguments than who’s more stubborn. I think a good rule of thumb is, decisions made before you joined the court, get stare decisis deference but decisions made after don’t. That way, a bad decision isn’t going to artificially entrench itself, but it won’t get overturned unless a judge concludes he screwed it up last time, or new judges who are using the more deferential standard think the decision must be overturned despite stare decisis concerns.
“I think that is extremely, extremely unlikely that any Supreme Court Justice would write a decision with the subjective belief that he was being dishonest about the clear meaning of the Constitution, because he needed to do this to reach a desired result.”
I disagree. I don’t think Marshall or Brennan could have thought that their view of the death penalty could have been really found in the Constitution without a huge amount of very serious self-deception.
“Sebastian seems to have the sort of view of Constitutional Law that I came into law school with, and which I found increased my first year when I read the criminal & civil procedure, but dissipated by the time I took Con Law. When you take Con Law you realize that it’s almost impossible to do this perfectly, and even the best of them f*** up some times.”
Con Law is pretty much the only area like this. The reason you can think that is because Con Law (the history of the texts) is so ridiculously conflicted that you either have to take it on faith or admit that modern Constitutional jurisprudence is far more influenced by the personalities of the Supreme Court than it is by the actual Constitution. You can especially see that in the atrocious decisions of someone (relatively conservative even) like O’Connor. Every decision for her is a multi-part balancing test with parts so amorphous that you could never predict an outcome by looking at the test, only by looking at the judges.
“The idea that you can honestly seek the truth even if you do not find it, it completely intuitive to me. The idea that art and music vary in quality, and yet there is also room for taste, is completely intuitive to me.”
Of course, but that doesn’t mean that everyone honestly seeks the truth. You are quite aware of that with Republicans. You don’t recognize it in liberals, or at least not liberal jurists. You grew up as conservatives first gained ascendence. I grew up as we were finally shaking free from an ossified liberal stranglehold in the legislatures and courts. I suspect that colors things somewhat.
“Either a news network is completely free and pure or any taint of ideology, or they’re all the same & you might as well just listen to the one who tells you what you want to hear. The idea that it’s one thing to start with your mind made up and another thing to end with it made up after careful research–this does not seem ot be comprehensible. Either a politician has never told a lie in his life & never even considers his own re-election, or they’re all the same. Either you believe that life begins the moment the sperm hits the egg, or you’re a baby killer. The possibility that you honestly disagree about when life begins is not accepted. The possibility that not only is there no single moment when life begins, but that it takes nine months–that’s definitely not okay.”
This is why a Supreme Court decision codifying a trimester system of classification for abortion is so patently ridiculous. The Constitution doesn’t mandate such things, and if they are deemed important we should let the legislatures hash things out.
The idea that I don’t comprehend this kind of thing is really kind of ridiculous. See for instance this post more than a year ago (January 10 2004). Hell, I was writing about the fact that the difficulty in drawing precise lines doesn’t condemn the idea of firm moral categories as early as high school.
“Yes, I would rather someone make a legal error that leads him to the conclusion that it is never permissible to “treats member of the human race as nonhumans, as objects to be toyed with and discarded”
Heh, welcome to the pro-life side of the abortion issue. Oh, isn’t that what you meant?
A story at The Hill reports that the anti-filibuster rules change is a ‘go,’ and will trigger the nuclear option. The GOP leadership is reassuring its base and activists while trying to “appear” to be negotiating with the Democrats.
From the story:
“Republican aides and conservative activists said that the leadership is most likely to trigger the constitutional option to force a confirmation vote on circuit court nominees Priscilla Owen or Janice Rogers Brown.
“The Senate Judiciary Committee has placed Owen on the agenda for a committee business meeting this week and scheduled Brown for next week. That means the soonest Republicans would trigger the tactic for Owen would be April 15 and the soonest for Brown would be April 22, a GOP aide said.”
This comes on the heels of yesterday’s “Remedies to Judicial Tyranny” meeting of conservative activists, during which Edwin Vieira approvingly quoted Stalin’s advocacy of assassinating judges (he quoted Stalin more than once, to make sure he got his point across).
It also comes days after Senator Cornyn mused about how, while he certainly would never approve or advocate violence against judges, he sure could understand why some people would want to kill judges, and how that sure would be the judges’ fault.
And, of course, it comes a couple of weeks after the Schindler/Randall/DeLay circus in Florida, where charges of ‘judicial murder’ figured prominently among the talking points, and so many death threats were made against the judges involved that at least one of them needed bodyguards.
I could say the GOP leadership and its lickspittle fundie followers are a bunch of rabid hyenas. But that would be an insult to rabid hyenas.
Sebastian: Heh, welcome to the pro-life side of the abortion issue. Oh, isn’t that what you meant?
It is if you regard women as human beings. The real pro-life side of the abortion issue is pro-choice. Seeking to make abortions illegal is not pro-life: it’s pro-death.
On a complete subject change:
Has anyone else noticed that if you are in More Poetry (Responsible Blogging), the topic to the left of Main, which ought to be Explaining, Justifying, Demonizing, is Anticipating the John Bolton Confirmation Tempest?
I always vaguely thought those links got inserted automatically, but I guess not…
CaseyL: “and how that sure would be the judges’ fault.”
There’s a serious case to be made that something scary is going on without making stuff up to do it.
For Rilkefan, the money quote from Cornyn:
” I believe that insofar as the Supreme Court has taken on this role as a policy-maker rather than an enforcer of political decisions made by elected representatives of the people, it has led to the increasing divisiveness and bitterness of our confirmation fights. That is a very current problem that this body faces today. It has generated a lack of respect for judges generally. I mean, why should people respect a judge for making a policy decision borne out of an ideological conviction any more than they would respect or deny themselves the opportunity to disagree if that decision were made by an elected representative?
…And, indeed, I believe this increasing politicalization of the judicial decision-making process at the highest levels of our judiciary have bred a lack of respect for some of the people that wear the robe.
… And I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in — engage in violence.”
Did I make up these quotes, Rilkefan?
No, but you don’t understand simple logic if you’re getting from “A group does something wrong” and “people affected are angry at the group” and “some of those people will act violently” to “the group deserves it”. So I amend my statement: It’s possible to make a serious case that there’s something scary going on without making stuff up or abusing logic in order to do so.
I might agree if I put Cornyn’s speech in a vacuum bottle, sanitarily isolated from the rest of the world.
But Cornyn’s speech didn’t happen in a vacuum. His speech is not one lone outlier data point. It is one point among an accumulating data sample. Cf, the rest of my earlier post.
RE: Griswold and Roe.
Roe does not flow directly and obviously from Griswold. A key problem with Griswold is that it was based on the lie that the decision was based on the long tradition of the government not piercing the sanctity of the marital bed. The constitutional right to contraceptive had to be grounded in a well understood fundamental right, and a general Constitutional right to privacy did not exist. Griswold established a right to privacy in certain long established traditions such as that of the marital relationship. It inferred contraception/sexual relations between a man and his wife as being part of this long established and long protected private relationship.
This certainly seemed a little bit odd, but it could hardly be denied that the private marriage relationship had a special place in the history of the Anglo-Saxon legal tradition. So it sounds like a reasoned argument.
But it was really just a justification instead of a reason–this was revealed in the next case where the Supreme Court said effectively ‘we were just kidding about all that private marriage sanctity crap, we will just turn that into a personal right’. The problem with doing that from an analysis point of view is that it represents an unmooring from the actual Constitution. Griswold didn’t reference the text very well, but it finessed that by holding fast to long held American legal and societal traditions. Eisenstadt just hopped right out of the traditions and did what the Justices wanted from it.
You should understand that I have nothing against contraceptive. I think that rules against them would be highly stupid. But that doesn’t make it a Constitutional issue.
Roe revealed the whole farce in very dramatic terms. The previous steps were smallish and sort of tied to the reality of American tradition, so they didn’t create as much outrage. That doesn’t make them strong or well-reasoned or correct. That just means they weren’t the breaking point. But Roe was wildly out of step with much of the population, had very little to do with Constitution, looked just like legislation with its certainly nowhere in the text trimester system. That is why it was reacted to so strongly. It exposed the allegedly true-to-American-tradition ‘reasoning’ of the previous cases as using American tradition as a mere window dressing. It wasn’t an actual limit or useful guide, it was just an ornament to distract people from the judicial legislation going on behind it. But with Roe, they didn’t bother enough with the ornament because it couldn’t get what they wanted that way.
Roe was an act of arrogance fueled by the fact that the court hadn’t been called on its previous engagements in creativity.
CaseyL, I agree with you that the context stinks, but Cornyn said a lot of stuff in defense of judges too. If you want to say he implied something, go ahead – I’ll disagree, because I think that helps the “you’re objectively pro-Saddam” crowd – but the imply/say distinction is important.
“A key problem with Griswold is that it was based on the lie that the decision was based on the long tradition of the government not piercing the sanctity of the marital bed.”
So, you’ve gone from claiming the privacy rights invoked in Roe were made up out of whole cloth, to saying the privacy rights invoked in Griswold were?
Well. That’s progress, of a sort: at least you’ve acknowledged the importance of Griswold. Unfortunately, you’re wrong. Griswold didn’t ‘invent’ privacy rights, either.
From the Griswold decision:
y Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143 ) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U.S. 183, 195 ) – indeed the freedom of the entire university community… Without [381 U.S. 479, 483] those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.
In NAACP v. Alabama, 357 U.S. 449, 462 , we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral First Amendment right… In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of “association” that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430 -431. In Schware v. Board of Bar Examiners, 353 U.S. 232 , we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man’s “association with that Party” was not shown to be “anything more than a political faith in a political party” (id., at 244) and was not action of a kind proving bad moral character. Id., at 245-246.
…The right of “association,” like the right of belief (Board of Education v. Barnette, 319 U.S. 624 ), is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.
We have had many controversies over these penumbral rights of “privacy and repose.” See, e. g., Breard v. Alexandria, 341 U.S. 622, 626 , 644; Public Utilities Comm’n v. Pollak, 343 U.S. 451 ; Monroe v. Pape, 365 U.S. 167 ; Lanza v. New York, 370 U.S. 139 ; Frank v. Maryland, 359 U.S. 360 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U.S. 288, 307 . Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The [381 U.S. 479, 486] very idea is repulsive to the notions of privacy surrounding the marriage relationship.
Privacy rights have a solid body of precedent backing them up. The Court, in Griswold, extended privacy rights to ‘the marital relationship.’ It flies in the face of logic to extend privacy rights to home-schooling, private schools, and political affiliation – yet deny privacy rights to personal, private relationships.
To tear down Roe, you have to tear down Griswold. To tear down Griswold, you have to tear down about 20 previous SCOTUS decisions.
So many conservatives have for so long claimed that Roe (or Griswold) ‘invented’ privacy rights that it’s become a meme. It’s become a piece of conventional wisdom. But it’s not accurate.
Rilkefan – We’ll agree to disagree on this one. I leave you with two quotes:
“Will no one rid us of this meddlesome priest?”
“I come not to praise Caesar but to bury him.”
We got lots of “meme’s” CaseyL.
We also spread the meme that the mainstream press & acadamia are ruthlessly liberal.
You just keep dismissing are points as inacurate “meme’s”
& we’ll keep spreading them.
Griswold ‘extended’ privacy rights tied to the institution of marriage which predated Anglo-American legal structures that were therefore already very well recognized deeply in our society. Which is why it wasn’t so shocking to the conscience.
Roe went well beyond that.
Griswold changed things in a limited way that was still very tightly tied to traditions of US society. That made the stretch in ‘reasoning’ somewhat defensible. Roe revealed that judges weren’t really interested in bothering with such things–and it made it seem very likely that decisions like Griswold only pretended to be DECIDED with respect to such bedrock understandings.
Sebastian: Assuming your argument is correct (IANAAL), you seem to be arguing that Roe was indefensible because it presumed that women do have a right of privacy, and you think that “the tradition of American society” is that women don’t – that the government has a right to step in and declare a woman has no right to a womb of her own. So to speak.
Even assuming that you’re right that the tradition of American society is that women ought not to be allowed to expect to have private consultations with their physicians, surely you recognize the concept that some traditions are evil, and ought to be changed?
Kinda mostly OT: Why the President gets his way.
Ouch, rilkefan. Just ouch.
We got lots of “meme’s” CaseyL.
Most of them as blatantly inaccurate as this one. I note well that you didn’t bother to address his argument, preferring to sneer at the word “meme”.
We also spread the meme that the mainstream press & acadamia are ruthlessly liberal.
Speaking of blatantly inaccurate memes…
You just keep dismissing are points as inacurate “meme’s”
& we’ll keep spreading them.
Translation: “We both know these memes are completely false and dishonest, but if we keep repeating them often enough they’ll stick.”
“ruthlessly liberal”
I want that as my epithet.
Sure it is. A cherrypicked selection of voters, certainly, but they’re still accountable.
Look, my point was not that the House was a paragon of expression of the people, but rather it’s much more so than the Senate.
“Assuming your argument is correct (IANAAL), you seem to be arguing that Roe was indefensible because it presumed that women do have a right of privacy, and you think that “the tradition of American society” is that women don’t – that the government has a right to step in and declare a woman has no right to a womb of her own.”
No, abortion is not a ‘privacy’ right. Women have the right to privacy. Killing a growing human life isn’t a privacy right. There are competing rights. They are best balanced by the legislatures because legislatures have a broader range of legitimate topics, while courts are supposed to restrict themselves to already existing laws and the Constitution.
Women have the right to privacy.
Then a woman has a right to consult with her physician privately without the government stepping in to decree what medical treatment she can or cannot ask for – which would include deciding whether or not her body, her life, or her mind can tolerate being pregnant. In short, she has a right to ask for, and get, a legal safe termination of her pregnancy. End of story.
They are best balanced by the legislatures
In an ideal world, they would be. Or, hell, even in the extremely un-ideal UK, they are.
In legislatures dominated by conservative men who prefer women to have illegal unsafe abortions rather than grant women a legal right to privacy, it appears that the right of women to privacy is better balanced by the Supreme Court.
I’ve never seen you argue for any measures that would mean fewer abortions: I’ve only ever seen you argue for making abortions illegal – in other words, you argue passionately for illegal unsafe abortions, but never for fewer abortions. It’s as if you don’t think women’s lives matter as much as fetal lives – nor indeed have I ever seen you argue for any measure to make parents’ lives or the lives of children easier/better/less expensive.
Free healthcare for pregnant women and children. Affordable easy-access daycare. Real sex education, including relationship-education, starting from an early age. (Modelled on the Netherlands, where they have the lowest rate of teenage pregnancy in Europe.) Self-defense classes for girls, also starting at an early age. Free contraception and anonymous contraceptive advice for all. I’m sure there are a bunch of other things you could argue passionately for if what you care about is saving human lives – but I suspect that you will always put your conservative ideology ahead of saving human lives, and always put the right of conservative ideologues to intervene ahead of a woman’s right to privacy.
Actually, that’s one of the things conservatives were and are doing that had be opt out of voting at all for a while. Removal of sex ed from the curriculum just has people having ignorant sex (hey, there’s an open thread right there), getting STDs and getting pregnant. I think there’s some wishful thinking there that maybe if the serpent doesn’t give a condom-wrapped banana to Eve, original sin will never happen. Despite reams of empirical data to the contrary.
I was always of the opinion that you can’t legislate morality, but if you think abortion is murder, minimizing abortion by doing your damnedest to see that the necessity of it is minimized ought to be a shoo-in. But God forbid we should tell teenagers about the inevitable consequences of sex; better to freaking browbeat people into behaving the way you think is right.
Which, of course, will never, ever work. The sooner the religious far right extract their heads from their posteriors and realize this, the better for everyone.
strike “had be opt out”, insert “had me opt out”.
In _The West Wing_ universe, the Republicans are running a Slartian candidate for president (my fiancee made me watch the last couple shows). At one point he gives such a reasonable speech that a bunch of (Democratic) West Wingers look like they just swallowed beetles in a “I could vote for this guy” sauce. Thank god I live in a universe where my choice is crystal-clear.
The sooner the religious far right extract their heads from their posteriors and realize this, the better for everyone.
We seldom agree, Slart, but that whole comment regained you enormous amounts of respect from me. For what that’s worth to you, anyway.
It’s my personal opinion that the degree to which religious conservatives have gutted sex ed borders on criminal negligence. As I put it in another thread, it’s like keeping an unlocked gun in your house while your kid’s growing up, but never teaching them gun safety.
I wonder if the logical parallels here have ever occurred to the people in the overlap zone between 2nd Amendment conservatives and anti-sex conservatives?
Thank god I live in a universe where my choice is crystal-clear.
I think personally I’d prefer to live in a universe where I could find things to be happy about regardless of who won, where the choice came down to weighing which candidate’s good points I preferred instead of having to vote for one candidate primarily because the alternative was so unthinkable. The kind of polarized, party-line politics we have in this country is really corrosive, both psychologically and to society in general.
Hey, just because we frequently disagree and occasionally come to verbal fisticuffs…
No, I think this is one of those rare occasions where we’re both in the right, as tempted as I am to regard such happenstances as the other possibility.
Oh, and thanks. Respect is hard to come by.
Slarti: I was always of the opinion that you can’t legislate morality, but if you think abortion is murder, minimizing abortion by doing your damnedest to see that the necessity of it is minimized ought to be a shoo-in.
Exactly.
Damn, Slarti, just when I get set to dismiss you as a frivolous butterfly, you say something that sensible. 😉
Thank god I live in a universe where my choice is crystal-clear.
“I think personally I’d prefer to live in a universe where I could find things to be happy about […]”
My statement was intended to be mostly ironic.
As I put it in another thread, it’s like keeping an unlocked gun in your house while your kid’s growing up…
Ahem. This is my rifle, this is my gun…
Removal of sex ed from the curriculum just has people having ignorant sex (hey, there’s an open thread right there)
I genuinely fear the results of that open thread. Let’s do it!
Ahem. This is my rifle, this is my gun…
Yes, well, it helps that the parallels are metaphorical as well as logical. 😉
Hell, I’m surprised nobody’s made a pro-sex-ed campaign targeted at 2nd Amendment conservatives on that basis.
I genuinely fear the results of that open thread. Let’s do it!
Seconded!
In fact, didn’t we hijack another thread recently with that?
Hell, I’m surprised nobody’s made a pro-sex-ed campaign targeted at 2nd Amendment conservatives on that basis.
Agreed. The NRA keeps pestering me to join so that they can get firearm safety classes into schools. I’ll write to them that I’ll do so as long as they also come out in support of sex-ed classes at the same age
Yes, well, it helps that the parallels are metaphorical as well as logical. 😉
Speaking of metaphorical extensions.
Didn’t expect the Spanish Inquisition, did you?
Didn’t expect the Spanish Inquisition, did you?
Well, to be fair, no-one expects the Spanish Inquisition…
Life imitates art.
Videos Challenge Accounts of Convention Unrest”, New York Times.
Testimony of Constable Pan Am, Monty Python’s Flying Circus, episode 27 (scroll down to the courtroom scene).
Lawyers here – if it turns out cops testified falsely in scores of these cases, is it likely that any of them will face perjury charges, or perhaps the prosecutor’s office?
Great article thanks ral. I especially liked the bit: “The Police Department maintains that much of the videotape that has surfaced since the convention captured what Mr. Browne called the department’s professional handling of the protests and parades. “My guess is that people who saw the police restraint admired it,” he said. ”
No doubt if you were someone who saw police restraint at that time you were amazed, or perhaps just very high.
Rilkefan- I don’t think you have to be a lawyer to understand that cops will not be jailed for perjury. It would be tantamount to a death sentence, which in my opinion would be warrented, but most people wont go for.