Out Of Bounds

155 thoughts on “Out Of Bounds”

1. Thank you.

2. Look, Republicans are far more likely to be called Nazis or fascists. I understand that you are offended, well the shoe is on the other foot far more often.

3. DaveC: Oh? I wonder whether this is just some sort of perspectival thing, whereby one notices them more when directed at oneself. I, at any rate, notice a lot when people talk about Feminazis and Hitlery, or when during the Schiavo affair people on the right said that this was the sort of thing the Nazis had done, and it was to be expected from the likes of me because, like the Nazis, I embrace (supposedly) a “culture of death”, etc. etc.

4. DaveC: here’s the Google search for ‘Schiavo Nazi’. And don’t forget this ad, which unlike the MoveOn ads was produced by Bush’s actual campaign.
   But look: it’s wrong whoever does it.

5. I am not so concerned about this Unitarian jihad, and I think that firing epithets at each other is better than firing Rocket Propelled Grenades.
   Still, being subjected to this crap in church, like this passage:
   These are the battles our soldiers are being used to fight. They are battles for a concept of empire so similar to the vision of Hitler’s Nazi party of sixty years ago that it’s hard to consider the similarities accidental. This is the ideology our soldiers are carrying into battle with them as they fight, kill and die not for freedom or the American way, but for greed, arrogance, and a murderous lust for power that seems terrifyingly insane.
   on Veteran’s Day for cripes sake. Now, I don’t attend Rev Loehr’s church, but I do sometimes go to a church whose minister is a friend of his, and I heard this sort of stuff coming from the pulpit, (not so much anymore, since I don’t show up) and I think it is disgusting, and apparently I am the only one in the congregation who is not nodding.
   And they keep sending me letters asking why I don’t give more money to the church. I think the religious education classes were good for my kids, but they should buy a frickin’ clue about how the majority of Americans think.

6. Sorry. something goofy is going on with some of those links.

7. DaveC: yeah, the sermon was a mistake. But you do know that Unitarian Jihad is a joke, right? It started with this column by Jon Carroll, and sort of spread. You can get your own Unitarian Jihad name here (I am Sister Howitzer of Mild Reason, or in the Reformed Unitarian Jihad, Sister Burning Flame of Balance. Likewise, that’s how Francis became Brother Rail Gun of Reasoned Discourse.)

8. I know its a joke. My link actually was to Billmon, but the ObWi URL somehow got stuck in front of it.

9. Ah, sorry — the dangers of not being able to see someone’s face when I converse with them.

10. “Of the 154 nominations to the Supreme Court between 1789 and 2002, 34 were not confirmed. Of these, 11 were rejected by a vote of the full Senate. The remaining 23 were postponed, referred to a committee from which they never emerged, reported from committee but not acted on, or, in a few cases, withdrawn by the president when the going got tough.”
    There is a huge qualitative difference from a nominee being exiled to committee when the President’s party does command a majority in the Senate and when he does. The reason why judicial nominees could be lost in committee was because the committees were controlled by the opposition–i.e. they reflected in small a larger control of the Senate. That is absolutely not true now.

11. Yes, but on Supreme Court nominations, the case for a filibuster being ‘unprecedented’ is a lot harder to make. Ornstein again:

    “Krauthammer–like Senate Majority Leader Bill Frist (R-Tenn.), Sens. Mitch McConnell (R-Ky.), Orrin Hatch (R-Utah) and their compadres–suggests that filibusters against judicial nominees are a fraud. He dismisses the filibuster against Abe Fortas as not a real filibuster, since he didn’t have the votes anyhow. He says, “two hundred years of tradition have been radically and unilaterally changed by the minority” Democrats, because they have lost the last two elections and fear losing the only branch they control, the courts, on which their loyalists have legislated “by judicial fiat everything from abortion to gay marriage to religion in the public square.” (…)
    Where to begin? Let’s deal quickly with Fortas. First, apply Logic 101: If Fortas did not have the votes, why filibuster? If it was not a filibuster, as many Republican Senators have contended, explain the official Senate Web site, in its section on history, having as its headline “October 1, 1968: Filibuster Derails Supreme Court Appointee.” Must be the phenomenon Ronald Reagan talked about with his White House, that sometimes the right hand doesn’t know what the far-right hand is doing.”

12. I should note that there is no official Unitarian doctrine or creed, (in this way they are much like the Baptists) and each individual church and minister decides what will be said and done in that particular congregation.
    I also think that the minister’s primary responsibilty is to serve the members of the church, and to be of assistance when family troubles, including illness and death occur, and in celebration and affirmation of births and weddings and the like.
    Oddly enough, people I know who probably thought that I was extremely liberal, and well, kind of far out, five years ago now have the impression that I’m some kind of Bible thumping reactionary. Neither one of these characterizations is really the case. I think that the same deal might be true for other “conservatives” that comment or post here.

13. discussion of actual legal stuff just made me sleepy. good night.

14. Sebastian: There is a huge qualitative difference from a nominee being exiled to committee when the President’s party does command a majority in the Senate and when he does. The reason why judicial nominees could be lost in committee was because the committees were controlled by the opposition–i.e. they reflected in small a larger control of the Senate. That is absolutely not true now.
    I’m going to go out on a limb and bet that the drafters of the cloture rule took into account the possibility that a measure with enough votes to pass an up or down vote might not necessarily meet the threshold for cloture. In other words, so what? Are not both scenarios you describe perfectly consistent with the Senate rules as they stand? And does the distinction above in any way vindicate the claim that all nominees deserve an up or down vote?

15. The point of noting that nominees vanish into committee is to minimize the new balance of power that Democrats are attempting to strike with the filibuster. Yes, it was not completely unheard of for a nominee to vanish in committee–when the President’s party didn’t control the Senate and when the President’s party hadn’t gained Senators in back to back elections.
    Filibustering has not traditionally been used against large numbers of court nominees. Filibustering has a long and ugly tradition, but it wasn’t typically employed against nominees. Typically much more deference has been given to nominees. Rehnquist was elevated to Chief Justice after much wrangling by a Democratic controlled Senate. That is Rehnquist, one of the most conservative judges of this century. Scalia, whose very conservative record was already well established was confirmed by a Democratic controlled Senate with 98 votes for confirmation.
    The idea that a minority party ought to regularly block judicial nominations is not an established concept. The idea that filibustering nominees on a regular basis is good for government is a new policy.

16. The point of noting that nominees vanish into committee is to minimize the new balance of power that Democrats are attempting to strike with the filibuster. Yes, it was not completely unheard of for a nominee to vanish in committee–when the President’s party didn’t control the Senate and when the President’s party hadn’t gained Senators in back to back elections.
    Sebastian, my recollection is that many of the Clinton nominees who were blocked in committee were generally thought to be capable of winning up-or-down votes if they’d gotten to the floor, and that a number were finally confirmed by significant margins after very long delays. So unless you’re arguing that the leadership of the party that controls the Senate should be able to block nominees that have majority support, but the minority party should not, I’m not sure the argument holds up.
    OT: the Unitarian Jihad name generator is very cool!

17. The point of noting that nominees vanish into committee is to minimize the new balance of power that Democrats are attempting to strike with the filibuster.
    A non-zero one? Cool.
    The idea that a minority party ought to regularly block judicial nominations is not an established concept.
    And it’s not happening here.
    The idea that filibustering nominees on a regular basis is good for government is a new policy.
    And it’s not happening here.

18. How do you characterize what is happening here?

19. Sebastian Holsclaw: The point of noting that nominees vanish into committee is to minimize the new balance of power that Democrats are attempting to strike with the filibuster. Yes, it was not completely unheard of for a nominee to vanish in committee–when the President’s party didn’t control the Senate and when the President’s party hadn’t gained Senators in back to back elections.
    No, the point of noting that loads of nominees have been killed in committee or by other non-majoritarian procedural means is to give the lie to the “every nominee deserves an up or down vote” mantra. A “new balance of power” is what we will have if Frist decides to go ahead with his plan to institute a deliberate misreading of the Senate rules. The precedent set will be that a naked lie agreed upon by 50%+1 is, for all intents and purposes, not a lie at all.
    Filibustering has not traditionally been used against large numbers of court nominees.
    And out come more qualifiers. Never used against nominees that had majority support. Never used against so many nominees at once. You are tailoring your standards for “precedent” to fit your desired conclusion.
    The idea that a minority party ought to regularly block judicial nominations is not an established concept. The idea that filibustering nominees on a regular basis is good for government is a new policy.
    Where does this “regularly” business come from? Have not the Democrats allowed the vast majority of Bush’s nominees come to a vote? They picked ten of what they saw as the most extreme and unqualified nominees, and said “If you want to bring these to a vote, you’ll have to invoke cloture”. How does this constitute a new policy of regularly blocking nominees?

20. “No, the point of noting that loads of nominees have been killed in committee or by other non-majoritarian procedural means is to give the lie to the “every nominee deserves an up or down vote” mantra.”
    I don’t understand. Do you really see no difference between a majority party killing a nomination in committee, and a minority party blocking an up and down vote?
    “Never used against nominees that had majority support. Never used against so many nominees at once. You are tailoring your standards for “precedent” to fit your desired conclusion.”
    Hilzoy’s entire post is equating every single possible method of providing an obstacle to a nomination to a filibuster. This whole argument is clearly about choosing the standard to fit the desired conclusion. Argue why the standard is wrong. Liberals have to expand the discussion from filibuster to other forms of resisting a nomination because this use of the filibuster used to be unheard of. Don’t pretend that I’m the only one doing it. Hilzoy’s standard is odd because it confuses actions of majority parties with minority party actions. Blue slip procedure was a minority party action and thus appropriate in this context. Losing in committee to the majority party–not so much. Failure to distinguish between such cases, especially after I have pointed them out, is just ignoring my argument. And you can feel free to do that. But ignoring my argument AND getting puffed up with pompous indignation is just annoying though it is getting completely typical on this site.

21. Sebastian: Do you really see no difference between a majority party killing a nomination in committee, and a minority party blocking an up and down vote?
    Perhaps you would explain what the difference is? As I see it, the end result is the same in both cases: the judical nominee does not get a full vote in the Senate. The difference in tactics is presumably because the minority party in the Senate does not have the power to kill a nomination in committee. I am not being sarky: if the goal is (as apparently Republicans are saying it is) that all nominations shall have an up and down vote in the Senate, what difference does it make whether a nomination is blocked in committee or blocked by filibuster? Both are within the rules. What’s your perception of the difference?

22. Sebastian, again, the idea that the majority party (or, more accurately, the leadership/committee chairmen of the majority party) is entitled to block nominations regardless of whether those nominations have the support of 51 Senators is not so obviously different from a filibuster as you seem to think. During the Clinton administration, frustrated Democrats said the same thing that frustrated Republicans are saying now: give the nominees an up or down vote. I’m not wild about the filibuster, but after the Republicans finished stripping away the counter-majoritarian tools that they used to block Clinton’s nominees, their sanctimonious rhetoric about the perfidy of filibusters is just nauseating.

23. Seb, I find this invocation of minority party versus majority party actions to be really difficult to understand. Do the rules of the senate really provide for a notion of ‘the minority party can do this, but the majority party shouldn’t?’ or vice versa? My understanding is that the rise of party politics in the Senate is linked to the creation of the party policy committees in 1947. I hope this isn’t taken as an attack, but the invocation of majority vs. minority party status is new to me, so if it has been a thread in the discussion or raised somewhere else, I hope you can drop a link or two. Thanx.

24. Let’s step back and look at the bigger picture. What’s so wrong with forcing a President to nominate people who can get 60 votes? Conservative Republicans could be named for each of the current vacancies who could do so — 90 votes most likely. Judges who would easily win Sebastian’s vote, on the merits not just as deference, were he in the Senate.
    I’m not going to say that sending up nominations where the primary purpose is political rather than judicial (or patronage) is unprecedented, but even if it’s gone on before, it need not go on now.
    Even if one doesn’t think that the original nominations of most of the disputed judges was political — and I am sure it was for at least one — their re-nomination was made specifically for the purpose of drawing a filibuster.

25. 
    Who is the Senate Majority?

    But do Senate Republicans truly represent the majority of voters?
    Not at all. Although Republicans gained four Senate seats in the 2004 elections, Republican Senate candidates actually lost the nationwide popular vote. In 33 Senate races across the country, 41.6 million Americans cast votes for Democratic candidates, while just 38.1 million voted for Republicans.

    So what we have is the Republicans representing the majority of the States while the Democrats represent the Majority of the People.

26. Sebastian,
    “I don’t understand. Do you really see no difference between a majority party killing a nomination in committee, and a minority party blocking an up and down vote?”
    No. If the guiding principle (as we are reminded several hundred times a day) is that every nominee is entitled to an up or down vote, then I see no difference between a blue slip hold, the committe chair deciding not to bring it to a vote, a committee decision not to send the nomination to the full Senate floor, and a filibuster. All prevent full up or down votes based on the preferences of a limited number of Senators (1 in the first 2 cases, less than 20 in the 3rd). The Republicans have used the first 3 over 60 times (according to Senator Hagel) against Clinton nominees. Why are the Republicans getting so worked up over the Democrats using the 4th (which takes 41 votes) 10 times?
    Great post hilzoy, and I love my Unitarian jihad name.

27. DQ: Comparing votes across Senate races doesn’t work very well, since some races are more hotly contested than others. I doubt the percentage of eligible voters who actually vote for senator is close to the same for each state. Also, only a third of senators were up for election in 2004. Better is to compare the population of the states Democratic and Republican senators represent, which makes the same point. Of course, it doesn’t work out as well in the House.

28. Sebastian,
    In addition, if you believe Republicans only blocked votes on nominees when they were in the majority, read this.

29. So the Constitution demands an up-or-down vote, except if the reason is a committee vote, a blue slip, a filibuster when the party controlling the Senate is different from the president’s party — anything else? And it only applies to judicial appointments, or maybe just circuit court judges and above, not other sorts of appointments that are also subject to “advice and consent”? This penumbra is getting pretty rococo.

30. “And it only applies to judicial appointments, or maybe just circuit court judges and above”
    No, only cicuit judges. Supreme Court justices can be filibustered (Fortas).

31. I’m not real enthusiastic about that notion that Democratic senators represent the majority of the people because of state populations. You could turn around and say that Bush got the majority of the popular vote and so his nominations should be taken more seriously because of that. Anyway, we have the rules we have and there are more Republican senators.
    On Hitler comparisons, I’ve violated Godwin’s Law myself, though only in comparing a small genocide (East Timor) to a much larger one (the Holocaust). I didn’t object much when prowar types compared Saddam to Hitler–they seem similar to me, though Hitler had much more power and killed many more people. I don’t doubt that if Hitler had aimed his aggression a little more carefully, somehow contriving to attack the Judaeo-Bolshevik menace in the East, maybe with Poland’s help, he could have been a loyal American ally, just as Saddam was until he miscalculated the kind of atrocity that might upset us–invading another country without justification.
    Nazi analogies when we’re talking about Senate rule debates are way over the top, but hard to get worked up over for precisely that reason. The people making them are just being stupid. They’re only dangerous if there are people listening who might take them seriously. People so lacking in critical thinking skills they might blindly follow a demagogue no matter what he says. People who don’t really care about democratic norms. People with tendencies not unlike what we saw in the 1930’s. I am, of course, referring to the followers of Father Coughlin.
    The main problem I have with violators of Godwin’s Law is that they show a deplorable lack of American pride. We’ve got plenty of demagogues and villains and atrocities in our past, include small-scale (in bodycount) genocides and fair-sized ethnic cleansings and so forth. So why outsource one’s over-the-top comparisons to Nazi Germany? Buy American.

32. …anything else?
    evidence suggests political affiliation of the majority party is a factor, as well.

33. The penumbra is getting *very* rococo, KCinDC. It’s getting to be like those Obscure Statistical Anomalies of Monday Night Football fame.
    MNF: “”No team down by 13 points in the final quarter has ever scored two touchdowns within five minutes when the quarterback was a 5th round draft choice from Iowa.”
    GOP: “No judges have ever been denied an up and down vote before (by filibuster), once the nomination left committee (because we don’t let Democrats place holds in committee anymore) except for Abe Fortas (who doesn’t count) in deference to the President (unless he’s a Democrat). The Democrats just don’t want to confirm Bush’s judges (except for the 201 of them they already have confirmed). This is unprecedented obstructionism (the 60 of Clinton’s judicial nominees we kept from ever seeing the light of day don’t count, either).”
    

34. Sebastian, please explain how an abstract political concept advantageous to you, such as “minority party” meaning some sort of subaltern whelp instead of just the people with fewer votes, which is what this whole cloture and filibuster thing is about in the first place, has real meaning within the relevant rules of the Senate, where it does not appear.
    Perhaps if you could explain this new theory of American government to the parliamentarian, the GOP wouldn’t need the nuclear option at all.

35. BTW, John Cole is just as disgusted with Santorum, if not more so.

36. die, italics.

37. Italics are for Nazis!

39. Oh, and shockingly, my UJ name is:

    Brother Slartibartfast/The Cattle Prod of Looking at All Sides of the Question

    Scout’s honor.

40. “Liberals have to expand the discussion from filibuster to other forms of resisting a nomination because this use of the filibuster used to be unheard of.”
    Tell ya, what, Sebastian. We’d have to pretend to be able to speak for respective sides of the Senate to make this bargain, but let’s pretend. How about the Democrats agree to, in practice stop filibustering judicial nominees while they’re in the Minority, the Republicans bind themselves equally to do the same for at least an equal number of years when they return to the minority, and both sides agree to go back to the Senate tradition that Orin Hatch unilaterally wiped out, which is that no nominee will be voted on without a blue slip from every Senator?
    Who could object? You’re not going to claim that the Democrats invented the way the Senate worked until Hatch took it upon himself to change that, are you, or that there was something partisan about it? As you say: “Blue slip procedure was a minority party action and thus appropriate in this context.” Deal?

41. “So what we have is the Republicans representing the majority of the States while the Democrats represent the Majority of the People.”
    This is a remarkably pointless point. Newsflash: the Senate isn’t democratic in the way the House is. Film at eleven. Also just in: U.S. a republic, not a pure democracy. Constitutional structure conceived in 18th Century!

42. ewsflash: the Senate isn’t democratic in the way the House is.

    I’ve made this point so many times that I’ve given up all hope that those who still aren’t getting it are going to see the light.

43. Retraction, what retraction? That’s a retraction? And why not an apology?
    I’m not particularly prone to cut Senator Santorum any slack since he seems to be one of those people who is most annoying to me, with his combination of self-righteousness and an apparent willingness to skate as close as possible to the boundaries of ethics, but still, a retraction should be a bit more than the equivalent of ‘just kidding’ after an offensive joke.
    [I don’t recall seeing the details of what Byrd said, or why Santorum took him to task about it, but Byrd, with his history, should be particularly careful about offensive comments, even more so than the righteous wing of the Republicans.]

44. Hey, at least he didn’t say “I apologize if anyone was offended.”

45. “Sebastian, again, the idea that the majority party (or, more accurately, the leadership/committee chairmen of the majority party) is entitled to block nominations regardless of whether those nominations have the support of 51 Senators is not so obviously different from a filibuster as you seem to think.”
    That isn’t what I’m talking about. When a majority party blocks someone in committee it would be not at all surprising to find that they would have been doing the same on a full vote. (We can never tell 100% for sure because full votes are different than committee votes on anything, but the inference remains strong nonetheless). Things routinely lose in committee that would also lose on a floor vote. The same is not true of filibusters. A vote tends to be filibustered only when those filibustering it are pretty sure that they would lose on a floor vote.
    Now you all can argue that you don’t care about such a difference, but the failure to even see such a difference is looking willful at this point.

46. My UJ name is
    Brother Sword of Infinite Compassion
    Which I am quite fond of. However, I couldn’t resist checking out the Reformed Unitarian Jihad and they said I was
    Brother Spear of Kind Love
    Which sounds a lot sexier, but I’m not sure how the missus would take to it.
    I also had a bit of a shock when the RUJ web page came back with
    If you like this name, you can cut and paste the following HTML code into your blog/LJ:
    It took me a minute to realize that LJ meant Live Journal and not Liberal Japonicus.

47. “Now you all can argue that you don’t care about such a difference, but the failure to even see such a difference is looking willful at this point.”
    As is your failure to acknowledge that many of the judges which were defeated during the Clinton administration were the result of blue slips or holds by Committee Chairs. In other words, actions by a single Senator, which by no means implies that the majority of Senators support the blocking.

48. Sebastian, are you arguing that these filibusters are a bad idea, or that they’re unconstitutional? If they’re just a bad idea, then there’s a mechanism to change the rules to prevent them, but it requires a two-thirds vote of the Senate.
    If they’re unconstitutional — the claim required for the 50%-plus-Cheney option for throwing out the rules — then could you say what part of the Constitution is being violated and how it specifies that various other vote-blocking mechanisms and uses of the filibuster mentioned above are okay?

49. I always liked that one. It’s right up there with “If I don’t see you, have a good weekend”. What, is there some other wish that might result if we cross paths again? Is this an implicit request for me to stay the heck away from you?

50. And given the new extension to my handle (the Infinite Compassion one, not the Love Spear one) I will only quote this without making any direct comment
    Now you all can argue that you don’t care about such a difference, but the failure to even see such a difference is looking willful at this point.
    Of course, it is certain that the majority party would all vote the party line, and the Republicans have never had to do anything like, I don’t know, keep votes open for an unprecendented amount of time in order to force members of the caucus to vote correctly. Of course, this was the House and this would never happen in the Senate, I feel certain.

51. Santorum was probably just seeing if the media and hypocritical Democrat’s would let him off the hook the same way they let Robert Byrd.
    Sen. Rick Santorum of Pennsylvania, a member of the Republican leadership, said in a statement, “Senator Byrd’s inappropriate remarks comparing his Republican colleagues with Nazis are inexcusable.”
    Looks like he was wrong. Who wants to take bets there will be calls for an apology by the end of the day? Probably from Byrd himself.
    Many think it is fine that Reid referred to the President of the U.S. as a loser in front of a bunch of high schoolers. This really shouldn’t be that big of a deal either.

52. “As is your failure to acknowledge that many of the judges which were defeated during the Clinton administration were the result of blue slips or holds by Committee Chairs. In other words, actions by a single Senator, which by no means implies that the majority of Senators support the blocking.”
    How long were Republicans a majority party in the Senate? There is a difference between a party in power denying in committee what they could deny on the floor and a party not in power denying by filibuster what they could not deny in committee or on the floor. You and almost all the liberals in this discussion apparently don’t care about such a distinction. Fine. But you aren’t dealing with my argument, you are merely dismissing it and getting high and mighty about my interest in the allegedly useless distinction between having a majority in an elected government and not having a majority in an elected government.
    There is a difference in situation between a President whose party is different from the majority party in the Senate and one who shares a party with the majority party in the Senate. You seem to want to pretend that it is the same situation. It is not super-shocking when the President can’t get some nominees through a Senate controlled by the other party.
    It is rather surprising when a President can’t get through a large number of nominees through a Senate controlled by his Party unless there are significant defections from his Party for some reason or another (like may happen on Social Security for instance).
    In my view, a complete failure to note any useful difference between the two cases is a rather glaring failure to address what is happening here. When a committee chair acts, he is doing so as an extension of the fact that his party controls the Senate. There would be another chairman if the other party controlled the Sentate. The filibuster is almost by definition an act against the majority of the Senate. There is a qualitative distinction between acts that are done as an extension of majority power and those done in defiance of majority power.
    I would be thrilled to discuss the importance or lack of importance of such a qualitative distinction, but I can’t even get to the point where people notice such a distinction.

53. LJ, perhaps it’s my Southern upbringing, but I didn’t interpret “you all” as referring to all Democrats or opponents of Sebastian’s viewpoint, or whatever you’re suggesting it means. I thought it was just a way of distinguishing plural from singular “you” and showing that the comment wasn’t referring to only one particular person.

54. “There is a difference between a party in power denying in committee what they could deny on the floor and a party not in power denying by filibuster what they could not deny in committee or on the floor. You and almost all the liberals in this discussion apparently don’t care about such a distinction.”
    First, there’s also a difference between both of those cases and the case where a single blue slip blocks a nomination from even having hearings, so it cannot be determined whether such a nominee could prevail or whether any significant segment of the majority opposed the nomination. Your continued failure to even acknowledge this speaks volumes.
    Second, as noted in my 9:13 AM post, Republicans used single Senator holds even when they were in the minority.

55. Things routinely lose in committee that would also lose on a floor vote.

    And things routinely lose in committee that would win in a floor vote. So what’s your point?

    The same is not true of filibusters. A vote tends to be filibustered only when those filibustering it are pretty sure that they would lose on a floor vote.

    Obviously.

    Now you all can argue that you don’t care about such a difference, but the failure to even see such a difference is looking willful at this point.

    There’s a difference, but what’s the point? Since when has the Senate supposed to guarantee floor votes on everything? Is that, in fact, the standard you want? Or do you just willfully want President Bush to be able to have every single judicial nominee have a floor vote, which, purely coincidentally, means they’ll all be confirmed under present circumstances, because, boohoo, seven (or ten, if you prefer), whole nominees might be rejected, whereas rejecting 65 (or 64, depending on which account) Clinton nominees, hey, that’s just politics? Nothing willful there!
    Myself, what I marvel at, is the short-term outlook of Republicans here. Do you really believe the Senate will never be in Democratic hands, with a Democratic President, ever again? Will you still be applauding the elimination of minority rights in the Senate then? Supporting, say, President Hillary Clinton’s ability to install as many “radically liberal” judges and Supreme Court Justices as the heart desires? Is that really what you want?
    Incidentally, what argument are you making regarding judicial filibusters that doesn’t apply to all Presidential appointments, and to all bills?
    Incidentally, what did you have to say about the Republican filibuster of H. Lee Sarokin in 1994, or the Republican filibuster of Richard Paez in 1999, or the Republican filibuster of Marsha Berzon? Has the Republican Party decided that Stalinist techniques of rewriting history are the way to go in ignoring their own filibusters? Was Senator Bob Smith of New Hampshire a Democrat when he decried?:

    “Don’t pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge that I don’t think deserves to be on the circuit court … . That is my responsibility. That is my advice and consent role, and I intend to exercise it.”

56. Sebastian-
    Aside from the fact that Republicans have filibustered nominees, both when in the minority and when in the majority, are you implying that Senators in the minority party have never been able to stop a judicial nominee by other methods before those methods were abolished by the Republicans?
    The sensible ‘compromise’ is to roll back the rules so filibuster isn’t the only possible choice for the minority. I don’t think any judicial nominee should be able to get onto the bench without some support, however grudging, from the minority.

57. The judges are bad candidates. They are rarely defended on their merits because their merits are so open to challenge. It is in the public interest that they be blocked. The Republicans in Congress would be behaving more responsibly if they simply nominated people who were not extremists. Also I have a lot of trouble with the you-guys-blocked-judges-years-ago-so now-we-get -to-run-rough-shod- over-you argument because it is too much like getting even. If the judges were good or even reasonable or even normal, they’d get appointed just like all the other judges the Bush adminitration wanted. These guys don’t deserve to be on the bench and the Democrats are protecting our interests by blocking them.

58. The filibuster is almost by definition an act against the majority of the Senate. There is a qualitative distinction between acts that are done as an extension of majority power and those done in defiance of majority power.

    And that distinction is? Sebastian, since when has the intent and purpose of the Senate been to enshrine the Senatorial rights of the majority in power? This is, surely you know, the opposite of the intent of the Senate, which is the body created to be non-democratic, as Slart and I just noted. Individual states have, in the Senate, power to disrupt the wishes of the majority of states, and individual Senators have the power to disrupt the wishes of the majority of Senators. That’s the role of the Senate. It’s the point of having that body in our bicameral Constitutional design, rather than just the House, or two Houses. Right or wrong?
    So, yes, absolutely, there’s a “qualitative distinction” between the majority and the minority in the Senate. So bloody what?

    I would be thrilled to discuss the importance or lack of importance of such a qualitative distinction, but I can’t even get to the point where people notice such a distinction.

    I hope you’re duly thrilled. Now, discuss the importance or lack of importance of your distinction, by all means.

59. LJ, perhaps it’s my Southern upbringing, but I didn’t interpret “you all” as referring to all Democrats or opponents of Sebastian’s viewpoint, or whatever you’re suggesting it means. I thought it was just a way of distinguishing plural from singular “you” and showing that the comment wasn’t referring to only one particular person.
    Well, I’m from Mississippi, and I took it to mean that he was addressing everyone who posted on this thread who didn’t completely and totally agree with him, which seems to be, well, almost everyone.
    I realize that part of this is the fact that the commentariat here leans left, but this trying to wrap up everyone’s comment with single post and then being as bloodyminded as possible about how that post answers everyone’s questions really contributes to rising temperatures here imho. I realize that there are some sharp elbows, but comments like the one I mentioned and “You and almost all the liberals in this discussion apparently don’t care about such a distinction” really just leave a bad taste in my mouth, especially coming from one of the front page posters. I’m sorry, but if I made some offhand remake about almost all the conservatives on this site, I would be (rightfully) jumped on.
    Given the fact that Seb feels that Bolton shouldn’t be confirmed, (which I assume means that he shouldn’t have made it out of committee), I don’t understand this whole line of argument. If Bolton does get confirmed, will that mean that those opposing him were wrong, and Seb will have to get his priorities rearranged? Or does he not count because he’s not a judge? Plus the fact that the whole argument is the complete opposite of a ‘conservative’ argument. But since it’s looking to Seb that I’m and everyone else is ‘wilful’ on this, (and since Carnac’s are only for conservatives to bestow on liberals) I guess I just have to give up. Night all

60. lily, I don’t like the judges either, but I think it’s absolutely incorrect to say that they are rarely defended on the merits. I haven’t listened to all that much of the Republican floor speechifying in the current filibuster (and didn’t all that much in the November 2003 version) but much of what I have heard both times has been merits defense of the nominees.
    As for the rest, the question for Sebastian is whether he thinks there is any place at all for a filibuster rule, or whether the Senate should proceed, always, like the House. (I apologize if he’s given an example of what he thinks should be filibustered, and I’ve missed it.)
    The idea that the minority should have leverage with respect to a declaration of National Turnip Week but not wrt a lifetime appointment to the federal bench is not comprehensible to me.

61. Sebastian: “Hilzoy’s entire post is equating every single possible method of providing an obstacle to a nomination to a filibuster.”
    With respect, no. My entire post is about Sen. Santorum’s hateful remarks. One point about them is that the factual claims that supposedly underlie his Nazi comparison are false. One, though not the only, subpoint of that is: the Democrats’ actions are not unprecedented. Others include: there is no rule of the sort Santorum claims there is, etc.
    My actual argument against the nuclear option is in my earlier post (Going Nuclear.) Its main point is not about whether or not there’s a precedent for what the Democrats are doing, but about the fact that the Republicans are proposing to break the rules. If there’s no precedent for what the Democrats are doing, then the unprecedented thing they’re doing is still within the rules. The Republicans are contemplating what I see as the quite different step of throwing the rules out the window. There are ways of changing the rules, and the Republicans are not proposing to use them.
    All that said, I disagree with you about the unprecedented nature of all this. For one thing, and I may be misunderstanding you here, you seem to me to assume that there’s a lot of party discipline in the Senate. This is true now, at least as regards the Republicans, but it has for the most part not been true in the past. (Especially when Senate chairs were given by seniority: then someone could get a chair and use it to block whatever he wanted, whatever his party thought. He didn’t become chair because anyone thought he’d be particularly good at it, or because his views were in line with the party, or whatever; all he had to do was endure long enough, and he’d be in a position to prevent anything in his committee from coming to a vote. Some chairs regularly drove their parties to distraction in this way.)
    Historically, Senators have been a lot more inclined to insist on their personal fiefdoms and prerogatives, and on the independence of the Senate, and so not to just go along with what their party demanded. Also, there were a whole panoply of ways of blocking nominations other than by voting them down in committee. As noted, Committee chairs could never bring them up for a vote, there were blue slips, etc. But I also think I read somewhere, but I can’t remember where, that traditionally when all the members of the Judiciary committee from the minority party voted against a candidate, that candidate was by tradition not moved forward. If anyone can tell me whether this is true or false, I’d be grateful. — Of course this only worked when Senators didn’t vote straight party lines. But it seems to me to be an excellent tradition to have, though since it’s a tradition and not a rule, I wouldn’t have the same kinds of objections to doing away with it that I have to the nuclear option.

62. Sebastian: A vote tends to be filibustered only when those filibustering it are pretty sure that they would lose on a floor vote.
    Thank you for answering my question. I understand the distinction you’re making now.

63. A vote tends to be filibustered only when those filibustering it are pretty sure that they would lose on a floor vote.
    Sebastian, I suspect that I speak for a number of us when I say that your refusal to acknowledge that Republican Senators in many instances used parliamentary tactics to stop nominees when they (the Senators, not the nominees) were pretty sure they would lose a floor vote is every bit as frustrating as you find our purported refusal to acknowledge your majority party/minority party distinction. And when I read through the posts above, I see a great many cogent responses to your argument, which you seem to be assuming away rather than confronting.

64. A fifth objection to Santorum’s comment is that it makes no sense:
    It’s the equivalent of Adolf Hitler in 1942,saying, “I’m in Paris. How dare you invade me. How dare you bomb my city? It’s mine.”
    Who was bombing Paris in 1942?

65. There is a difference between a party in power denying in committee what they could deny on the floor and a party not in power denying by filibuster what they could not deny in committee or on the floor. You and almost all the liberals in this discussion apparently don’t care about such a distinction. Fine.
    In Frist’s interpretation of the Constitution there isn’t any difference. Not a dime’s worth. He keeps insisting, (as does Hatch – incredible) that there is some sort of Constitutional requirement that all nominees get a floor vote. He’s lying, of course, and unless I missed something it seems you are unwilling to endorse his position.
    The claim that the majority only kills nominations in committee that wouldn’t pass on the floor is wrong. Of course some nominations would pass on the floor. Senators do vote across party lines. (And if you really think the argument holds then it makes a mockery of the claim that “if these judges are so extreme there should be some Republicans who oppose them”)
    Committee rejection amounts to the same thing the filibuster does – it denies a floor vote. The procedures are different but the outcome is the same – a violation of Frist’s imagined Constitutional requirement.

66. Aha! Found it! New post on blocking things in committee forthcoming.

67. Lily,
    Do you think the ABA is wrong to give a qualified rating to Bush’s nominees?

68. Gromit (May 20, 2005 02:42 AM): In other words, so what? Are not both scenarios you describe perfectly consistent with the Senate rules as they stand? And does the distinction above in any way vindicate the claim that all nominees deserve an up or down vote?
    Sebastian Holsclaw (May 20, 2005 10:49 AM): I would be thrilled to discuss the importance or lack of importance of such a qualitative distinction, but I can’t even get to the point where people notice such a distinction.
    Maybe you missed the quoted passage from my comment above. You certainly didn’t answer my questions, which were intended to start the very discussion you claim would thrill you. The ball is in your court to explain just why we should care about that distinction for judicial appointments (and why we shouldn’t care for legislation).
    There is a difference between a party in power denying in committee what they could deny on the floor and a party not in power denying by filibuster what they could not deny in committee or on the floor. You and almost all the liberals in this discussion apparently don’t care about such a distinction.
    Speaking for myself, bingo! I don’t care and neither do the Senate rules. They defer neither to the majority party nor to the Presidency on the question of ending debate, nor does precedent require such deference. This is evidenced by the very existence of a higher requirement for cloture and the fact that cloture has been denied many times throughout the history of the Senate for measures that had majority support. Perhaps you wish otherwise, but, as has been pointed out repeatedly, there is a provision for rule-changes, and the Republicans are free to build support for such a measure. Since they don’t now have the votes to amend the cloture rule, the Republicans have many options in front of them: convince enough Democrats to vote for cloture, build support for a rule change, focus on winning more seats in 2006. But one option they can’t employ in good faith is the subversion of the Senate rules.

69. Sebastian,
    Thanks for continuing to argue about this issue.
    I still don’t understand how majority support is determined. If the Republicans want to amend the Senate rules because they believe all nominees with majority support deserve an up or down vote they should be able to define majority support.
    I don’t believe that is too much to ask and I haven’t yet found a definition of majority support. Can you or anyone else define that term or point to a page that does define it?

70. Sebastian is arguing only with himself. Rehearsing justifications that he will use if the Republicans go ahead and trash Senatorial rules.

71. Does the ABA judge judicial temperment? I’ve no use for any nominees who are willing to let their doctrinal predilection or prejudices overcome how our law works, or at least how Justice Holmes said our law works:

    The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

    Emphasis added.
    All other things being equal, a pragmatic judge will be superior to a dogmatic one. That judge will be more persuasive, more respected, more accepted, and more capable of persuading others. There is certainly room for dogmatism and doctrine in our political system, but it does not exist in the courts, particularly not at the appellate level.

72. “If the Republicans want to amend the Senate rules because they believe all nominees with majority support deserve an up or down vote they should be able to define majority support.”
    Huh? What part of “majority” requires definition? A quorum, which absent dead Senators, is 51. No one is debating that.

73. “All other things being equal, a pragmatic judge will be superior to a dogmatic one.”
    This isn’t terribly useful as a basis for arguing in favor to or opposition to a nominee, because no one conceives of the person they favor as being “dogmatic.” It’s about as useful as favoring smart judges over dumb ones.

74. Given that, why don’t the Republicans just propose a rule change to exclude judicial nominations from filibuster? Why aren’t they willing to follow the rules for a rule change?

75. Gary Farber: “Huh? What part of “majority” requires definition? A quorum, which absent dead Senators, is 51. No one is debating that.”
    If you are saying majority support means 51 senators will vote or will agree to vote yes on a judicial nominee, please say so.
    If that is the position, I don’t understand how this is determined without a whip count from both sides or a floor vote. That is why I don’t understand what majority support means. I hope that is clearer.

76. They undoubtedly think that they don’t have the votes, freelunch.

77. “Given that, why don’t the Republicans just propose a rule change to exclude judicial nominations from filibuster?”
    Because they don’t have the votes to pass that, as has been infinitely discussed.
    It would possibly be helpful to read the material previous linked.
    Rule 5 is very clear, by the way: “2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”

78. Huh? What part of “majority” requires definition? A quorum, which absent dead Senators, is 51. No one is debating that.
    Gary, if I’m understanding Sebastian’s argument correctly, he’s say that its OK for the majority party, or members thereof, to block nominations from coming to the floor even if there would be 51 votes in favor of the nomination on the floor, and that that’s completely different from the minority party’s using the filibuster to block nominations that could command 51 votes. Sebastian, please speak up if I’m misunderstanding you.

79. Slart – Not enough votes to change the rules? Tough. That’s part of the rules of the game.
    Frist is saying, “I don’t have the $400, for Boardwalk, but I’ll take it anyway and not pay for it.”
    Yes, I know he doesn’t have the votes to change Senate rules. That is why the question of a filibuster should not be a problem. The rules allow a filibuster. Frist doesn’t have any right to stop all filibusters by himself or even with 50 votes, he only has the right to try to stop each filibuster by cloture as it arises.
    Gary – I was commenting on the ABA and its method. Like you, I don’t see how they can say in an objective fashion that someone is unqualified because they are too dogmatic even though I am convinced that dogmatic judges are inferior to pragmatic judges.

80. Slart – Not enough votes to change the rules? Tough. That’s part of the rules of the game.

    Well, you did ask.

81. “Do you really believe the Senate will never be in Democratic hands, with a Democratic President, ever again?”
    I have not, in fact, recently heard partisan Republicans discussing this as a possibility. I am not to read their minds as to what they think or believe.

82. Nearly every way to stop a nomination other than the fillibuster has been abolished by the republicans (Blue Slip anyone?)
    “In the years that Republicans controlled the Judiciary Committee, the preferred method of “rejecting” scores of judicial nominees was to deny them Committee hearings and votes. More than a dozen of President Clinton’s Circuit Court nominees received the American Bar Association’s (ABA) unanimous “well-qualified” rating, but their nominations were defeated because their hearings were rejected by Republicans.
    The following Circuit Court nominees from 1997, 1998, 1999, and 2000 are in this category: H. Alston Johnson (5th Circuit), James Duffy (9th Circuit), Kathleen McCree-Lewis (6th Circuit), Enrique Moreno (5th Circuit), James Lyons (10th Circuit), Robert Cindrich (3rd Circuit), Stephen Orlofsky (3rd Circuit), Andre Davis (4th Circuit), James Beaty (4th Circuit), and J. Rich Leonard (4th Circuit).
    Allen Snyder (D.C. Circuit), who was also rated “well-qualified” by the ABA, received a hearing but was not allowed a vote by the Republican-controlled Committee.
    More than a dozen other Circuit Court nominees with “partial well-qualified” or “qualified” ratings were also defeated by Republicans who blocked their hearings or votes, including Helene White (6th Circuit), Jorge Rangel (5th Circuit), Robert Raymer (3rd Circuit), Barry Goode (9th Circuit), Christine Arguello (10th Circuit), Elizabeth Gibson (4th Circuit), Elana Kagan (D.C. Circuit), James Wynn (4th Circuit), Bonnie Campbell (8th Circuit), Kent Markus (6th Circuit), and Roger Gregory (4th Circuit).
    Dozens of District Court nominees from 1997, 1998, 1999, and 2000 with unanimous “well-qualified” or “qualified” ratings also were blocked by Republican refusal to give them hearings or votes. In all, nearly 60 of President Clinton’s judicial nominees were defeated through Republican blocking of hearings and votes, despite their ABA ratings. … While only two of President Bush’s judicial nominees have been defeated in open votes, nearly 60 of President Clinton’s judicial nominees were defeated through secret, anonymous holds and other secretive, non-transparent Republican tactics.”

83. “In 1994, Hatch defended a Republican-led filibuster on a judicial nomination by declaring that the filibuster is “one of the few tools the minority has to protect itself and those the minority represents.” Hatch himself voted with other Republicans to defeat the nomination of Henry Foster to be surgeon general by voting to continue a filibuster against the nominee, even though Foster clearly had the support of a majority of the Senate.”

84. Do we really need to lower the bar for lifetime positions?
    That seems backwards to me.

85. “Do you really believe the Senate will never be in Democratic hands, with a Democratic President, ever again?”
    “Never” is too long to opine on, but as depressing as it is, a Republican Senate for the foreseeable future seems demographically likely. There are far more Red than Blue state, and the system awards 2 senators to each, regardless of whether they have 35 mil. or 500,000 citizens. It seems much more likely that the Democrats would get the House back, no?
    So I expect that they will mostly feel comfortable acting as if they are permanenly in control.

86. Ann Althouse is arguing that there was some inclination to require 2/3 majority for rejection of appointments, which strikes me as moot. Because the rules we’re operating by are ones that apply today, not ones that were being considered (and rejected) a couple of hundred years ago.

87. Carsick: you beat me to it. See new post.

88. Sebastian: How do you characterize what is happening here?
    In the interests of not piling on, let me note that the word “regularly” in both citations is horrifically misplaced. Threatening a filibuster on 7-10 appointments while passing without furore — in fact, almost without comment — over 200 other judges does not “regularly blocking”, nor filibustering on a “regular basis”.

89. Vida, I’d agree, except that we’re dealing in human institutions. There will always be Republican senators from “blue” states — like Maine or Oregon — and Democratic senators from “red” states like Montana and New Mexico. And of course, the color of a state depends on the election. Maryland has a Republican governor, and Virginia a Democratic governor.
    Incumbents fare well, regardless of party. So you’d have to chart out where the open seats are going to be.(Not to say that Santorum couldn’t be defeated, for example.)
    * * * *
    I was driving home from a late lunch (I’m staying home with a finicky sump pump) and heard the cloture motion live on C-Span radio. Frist was absent, so Cornyn did the deed. 18 co-sponsors of the motion, none of whom are those previously thought to be in play. I find it interesting that the motion specifically invokes Rule XXII to cut off debate. I mean, how does one get off arguing that the provisions of Rule XXII are irrelevant or unconstitutional as applied to a motion made under Rule XXII?
    Also interesting is that Cornyn proposed a couple of alternatives before making the motion: first asking unanimous consent for 10 hours of additional debate to be followed by an immediate vote with no intervening motions [?] in order — which drew a barely audible objection — and then for more [15?] hours of debate followed by an immediate vote. Reid’s voice was heard, objecting and making the point that he was permitted to object. I’m no rules maven, but this seemed a little silly to me, if the immediate consequence was to be the cloture motion. As it was unfolding, I thought this would be the nuclear moment, but with the filing of the motion — and a vote to be taken on it sometime Tuesday — the moment passed.

90. I’m reposting that last on the other thread.

91. “There will always be Republican senators from “blue” states — like Maine or Oregon — and Democratic senators from “red” states like Montana and New Mexico.”
    True, but I think it is safe to say that there are strong contrary tendencies. Pretty hard to win as a Democrat in Oklahoma, even if your opponent is a near nutcase. Anything is possible, but statistically I doubt it looks good for Democrat control of the Senate over the long haul. There is probably some research on the subject somewhere, but, unfortunately, its back to paying work.

92. “Gary, if I’m understanding Sebastian’s argument correctly, he’s say that its OK for the majority party, or members thereof, to block nominations from coming to the floor even if there would be 51 votes in favor of the nomination on the floor, and that that’s completely different from the minority party’s using the filibuster to block nominations that could command 51 votes.”
    My argument is that is losing in committee is a fairly good indicator that you wouldn’t be doing well on the floor, while use of the filibuster is ONLY an issue if you definitely don’t have the floor votes. Committees are the designated ‘experts’ (scare quotes intentional). They are the ones who deeply investigate the claims and issues of whatever their committee deals with. It would be odd (though not logically impossible) to have a nomination die in committee if the person could have gotten a noticeable majority on the floor. (The 51-49 votes, unless strictly on party lines are of course kind of a crap shoot for marginal nominees).
    “Threatening a filibuster on 7-10 appointments while passing without furore — in fact, almost without comment — over 200 other judges does not “regularly blocking”, nor filibustering on a “regular basis”.”
    The Democrats are both regularly blocking and over-using the filibuster. Judges like Pickering got smeared. Others get hit by the filibuster. The Democrats aren’t JUST filibustering. They are obstructing all over the place. But frankly I think the Republicans are going about it wrong. Make the Democrats actually filibuster. I want to use TV spots of Boxer reading from a telephone book to fill 3 hours of debate. I want to see Byrd filibuster so we can run ads quoting his more famous anti-Civil Rights filibuster and draw fun parallels.
    Though to be honest, I think it is a sign of the horrific state of our legal system that anyone would want to bother filibustering judges. Judges aren’t supposed to be that important. The fate of huge numbers of social policy questions are not supposed to turn on the whims of judges. No one in 1910 would have ever guessed that people would think that nominating judges was one of the most important things that a President could do, or that it was one of the more important things that Senators could fight about on a regular basis. The state of the judiciary as the arbiter and creator of new rights is a deep perversion of the system–and it is a perversion which is poisoning the politics of our country.

93. Sebastian: see new story, on why nominees can fail in committee. Also, have you read this speech, in which Janice Rogers Brown decides that judicial activism isn’t so bad after all?

94. Sebastian,
    You must be joking with that last paragraph. I distinctly remember reading something in what? 4th grade about “three separate but equal branches of government.”
    Of course that was long ago and maybe like ‘new math’ you know of some ‘new constitution’ that has evaded my experience.

95. My argument is that is losing in committee is a fairly good indicator that you wouldn’t be doing well on the floor, while use of the filibuster is ONLY an issue if you definitely don’t have the floor votes. Committees are the designated ‘experts’ (scare quotes intentional). They are the ones who deeply investigate the claims and issues of whatever their committee deals with. It would be odd (though not logically impossible) to have a nomination die in committee if the person could have gotten a noticeable majority on the floor.
    Sebastian, I agree with parts of your last post, but I think the stuff quoted above is just factually wrong as an account of how nominations got killed during the Clinton administration. Refusing to schedule committee hearings, blue slips, holds, etc. were used to effectively kill a bunch of nominations, and a few that survived such tactics ended up being confirmed when they finally got floor votes.
    Just to pick a couple of examples I know personally (former colleagues): one was appointed to the District Court by Clinton, strongly supported by both home-state Senators, was held up for 2 1/2 years on various procedural BS before finally being confirmed. The problem was that the Judiciary Committee voted her nomination down, it was that it just kept getting put off, and IIRC some of the delay was from holds placed by non-Judiciary Committee Senators. The other person was nominated by Bush to the Court of Appeals. He got the grudging support of our two D Senators despite considerable resentment of the fact that Senate Rs had killed Clinton’s nomination for the seat by setting it aside until after the election. He was confirmed in 10 months, despite the fact that 9/11 happened between his nomination and confirmation. They’re both good people and good judges. But the process by which they got to where they are doesn’t fit your picture very well.

96. Sorry, that should have been “the problem was not that the Judiciary Committee voted her nomination down.”

97. And DaveL: don’t forget Rule 4 of the Judiciary committee: my discovery of the day, and what occasioned the latest post. The fact that until 2003 a nominee couldn’t get out of committee if the minority was unanimously opposed means that Sebastian’s claim:
    “losing in committee is a fairly good indicator that you wouldn’t be doing well on the floor”
    is, while understandable, false.

98. My argument is that is losing in committee is a fairly good indicator that you wouldn’t be doing well on the floor, while use of the filibuster is ONLY an issue if you definitely don’t have the floor votes.
    This is why your argument is nonsense. You define “losing in committee” to include all of the non-vote procedural tricks for denying committee votes on Clinton nominees. Many of these nominees prabably would have made it out of committee had a vote been held, and would have been approved on the floor by majority vote even if the committee sent them on a la Bolton. Republican tactics, with Hatch in charge, assured that no vote was ever taken in committee, and hence no action — for years in some instances.
    There is nothing unique about the current filibuster situation — and ample Republican lies about how “unique” it is. It is sad to see you vent them without any self-awareness of their phony quality.
    I also second the comments above that this is about Republican intransegence regarding the most extreme of their nominees. What is truly unique about this situation is the demand of the majority party to purposefully appoint the most extreme activist judges despite the objections, and force them through no matter what. From what I have learned, that is pretty unique and a huge break from tradition.
    For all of the complaints about “activist” judges ruining the courts, that is exactly what the Pepublicans seek to do — they just want to ruin it in their favor. Why not appoint moderate conservatives that disavow “activism” and actually practice what they preach — there are ample candidates available if that was the agenda.

99. The Democrats are both regularly blocking and over-using the filibuster. Judges like Pickering got smeared. Others get hit by the filibuster… They are obstructing all over the place.
    1) Who, beyond the judges currently at issue, got hit by the filibuster?
    2) Democrats didn’t “block” Pickering, they said nasty things about him in order to make him politically unpopular. If that’s your criterion for obstructionism, you’d better condemn the entire history of the Senate.
    3) As with Bird Dog, I’m curious to know where you draw the lines between “obstruction”, “opposition” and “doormat”, especially in the context of a deliberately non-majoritarian institution like the Senate.
    Make the Democrats actually filibuster. I want to use TV spots of Boxer reading from a telephone book to fill 3 hours of debate. I want to see Byrd filibuster so we can run ads quoting his more famous anti-Civil Rights filibuster and draw fun parallels.
    I happen to agree that filibusters should be made live. That’s the point of a filibuster, IMO: you trade looking foolish for the ability to stop what you regard as unacceptable legislation. If you end up looking too stupid than the issue at hand warrants, presumably your constituents will punish this by voting you out of office; if you take a stand of which they approve, they should forgive (or even laud) your foolish appearance by voting you back in.
    Of course, if you’re going to draw “fun parallels” with Byrd’s anti-Civil Rights filibuster, it’d only be fair to show Republican filibusters of the past… including not only Republican judicial filibusters (what??? how could that BE??? this is the first time this has ever happennnnneeeeed!!!!), but also those racists like Strom Thurmond who left the Democrats to find a welcome home in the GOP. Talk about fun for the whole family!

100. Hey can you manage to put the tagline: “Judges aren’t supposed to be that important.” next to your name on all posts? It would be helpful to all the people who think every landmark civil rights battle would have never been won without the judicial branch. Or to people who think “separate but equal” actually means something.
     Of course it will also be helpful for the folks who think the executive branch should control everything too.
     Aren’t you also one of the lawyers on this blog? I’m certain your opinion on the judicial branch may interest the judges you come before as well.

101. Carsick: I hate to mind-read, but one possible interpretation of Sebastian’s point is: they wouldn’t be as important if they weren’t legislating from the bench, and they should not be legislating from the bench, so…
     That’s one reason why I linked to the Brown speech; she decides that judicial activism is not, in fact, the problem it’s made out to be.

102. You’re right, I can see that view too hilzoy.
     It seems the administration is pushing avowed activist judges.
     I remember reading sometime after Bork that analyst were assuming presidents wouldn’t nominate controversial judges because the process had gotten more political than in the past. Now along comes this president and he nominates someone who has announced in a variety of speeches just how activist the court should be…not to mention some almost rambling speeches on right wing ideas that are far from the mainstream.

103. Crooked Timber has another one of her great speeches:
     Here’s the speech…
     http://www.constitution.org/col/jrb/00420_jrb_fedsoc.htm
     and here’s CT’s take on it…
     http://crookedtimber.org/2005/05/05/janice-rogers-brown-revisited/

104. “Gary – I was commenting on the ABA and its method. Like you, I don’t see how they can say in an objective fashion that someone is unqualified because they are too dogmatic….”
     Although I’m sure you simply misunderstood me, I didn’t say any such thing. For the record.

105. “The Democrats are both regularly blocking and over-using the filibuster.”
     Sebastian, how can you possibly maintain that 10 out of 200+ is “regularly”? I just don’t understand.
     And how is blocking 60+ judicial nominees out of 200+, as the Republicans did to Clinton, not “regular,” and just fine?
     “Judges like Pickering got smeared.”
     Please. 60+ Clinton nominees. Not to mention a hord of other rejected nominees for non-judicial office, from Lani Guiner to Ted Sorenson to Henry Foster to…. But, of course, that was just Republicans doing their solemn duty, with no “smears” involved!
     Hilzoy observes:

     The fact that until 2003 a nominee couldn’t get out of committee if the minority was unanimously opposed means that Sebastian’s claim:
     “…losing in committee is a fairly good indicator that you wouldn’t be doing well on the floor”
     is, while understandable, false.

     It’s also wildly ahistoric. Yeah, false. But not just because of the rule. Because of, you know, history. (Note: I do not believe Sebastian is intentionally passing on falsehoods; I believe he is passing on talking points without being familiar with the facts.)
     “Why not appoint moderate conservatives that disavow “activism” and actually practice what they preach — there are ample candidates available if that was the agenda.”
     Indeed. There’s no shortage whateve of conservative judges for Bush to nominate and conservative Republicans to be happy about, that Democrats would grudgingly not filibuster. Witness the 190 they’ve passed. Taking this as a serious complaint is, and I rarely use language this strong about this sort of thing, crazy. (If one were to take all the Republican Senators as sincere, which I fear I do not.)
     “No one in 1910 would have ever guessed that people would think that nominating judges was one of the most important things that a President could do, or that it was one of the more important things that Senators could fight about on a regular basis. The state of the judiciary as the arbiter and creator of new rights is a deep perversion of the system–and it is a perversion which is poisoning the politics of our country.”
     Is that Marbury v. Madison at fault? Or Brown v. Board of Education? Or what year would you say was the Rubicon for this “perversion” of finding “rights”? (Is it anything like finding a non-existent “right” to an “up or down” floor vote?)

106. “For all of the complaints about “activist” judges ruining the courts, that is exactly what the Pepublicans seek to do — they just want to ruin it in their favor. Why not appoint moderate conservatives that disavow “activism” and actually practice what they preach — there are ample candidates available if that was the agenda.”
     You mean like Pickering?
     “Democrats didn’t “block” Pickering, they said nasty things about him in order to make him politically unpopular. If that’s your criterion for obstructionism, you’d better condemn the entire history of the Senate.”
     Wrong, they spread lies about him to make him politically unpopular and threatened to use filibuster and other tactics if he were brought further along. The lies were spread to make the other tactics more palatable to the media if it came to that.
     Carsick I was about to go postal, but fortunately I read on. Hilzoy summarizes my point quite adequately. If there weren’t so acceptable for so many judges to push their own agendas against the laws that actually exist, the desire to pack courts with your own activist judges to make sure that the law gets perverted in your preferred direction (whichever it is) wouldn’t be so strong.
     I deeply wish that moderate judges could be nominated and confirmed, but the fact that Democrats opposed judges like Pickering strongly suggests that they will make play dirty with high profile positions no matter who is nominated.
     Pickering was a conservative and a textualist, but not an extremist at all. And he was an anti-racist despite the smear that he was an apologist for cross burning. Democratic tactics against him strongly suggest that they don’t want moderates on the bench. Bush has (I believe unfortunately) escalated from that point.
     If I may speculate on political tactics: Bush seems to be saying something along the lines of “if you won’t agree to my moderate nominees, you aren’t going to get more liberal ones, you are going to get more conservative ones until the issue comes to a head and we can try to return to normal.” I don’t know if that was the best possible response, but it is not ridiculous in the face of Democratic opposition to moderately conservative judges. Bush can’t allow Democrats to set up a situation where moderate conservative judges are unacceptable–which is what they were doing at the time. So he has redfined the terms of the nominations. He started with moderately conservative nominations. After a number of them were shot down as too conservative–Democrats trying to set up all conservative nominations as unacceptable–he nominated more conservative judges. This has happened through at least two iterations and one election where Republicans gained seats in the Senate. We have now gotten to the point where things are going to come to a head. One of two things is likely to happen. Either the Democrats crack and even highly conservative judges get through, or there is a climb down and moderately conservative judges will be allowed through on a regular basis as part of deal (formal or informal). Both cases are better than the Pickering days where Democrats wouldn’t even allow moderately conservative judges to get through. The fact that a judge as moderate as Pickering would sail through now even though he was bitterly resisted at the time, suggests that something right is going on.
     Hilzoy, I was wrong that failure to assert that failure in committee usually would predict failure on the floor, but I think some of your counterexamples don’t mean what you think they mean. A denial from a Senator from the state in question who was also a member of the majority party makes sense because such a member would tend to know things about the goings on in his state that would (if brought before the vote) alienate members of his own party. It makes perfect sense to think of that as a good warning light that the floor vote wouldn’t go well. Same goes with a member of the Presiden’t Party. Note that if you were a member of the party that wasn’t in the majority and wasn’t the same as the President’s it wouldn’t not apply. That makes sense as well because you aren’t speaking for any of the people with power in the situation.
     “Is that Marbury v. Madison at fault? Or Brown v. Board of Education? Or what year would you say was the Rubicon for this “perversion” of finding “rights”? (Is it anything like finding a non-existent “right” to an “up or down” floor vote?)”
     How about Roe? Maybe Eisenstadt?
     It isn’t the power of judicial review that I’m complaining about. I’m complaining about marrying judicial review to an not-very-limited reading of the grounding documents which lets judges like O’Connor play the “make up a 6 part amorphous balancing test out of thin air to get the result I want and leave everyone confused about the state of the law going into the future” game. Judicial review makes sense in a compare the lesser statute against the superior statute and check for contradictions sense. That is a check on power. It does not make sense in a compare the lesser statute against what I feel the superior statute ought to be like and check for contradictions sense. That isn’t a check on power, that is will to power.
     You are excellent at researching obscure topics–if you want to understand why conservatives are angry look into the quickly escalating number of laws overturned by the Supreme Court on a decade by decade basis since Marbury. Examine the number of long-established understandings that get overturned without changes in the text of the Constitution.
     Abortion is a great example. There is a century-long history of different states dealing with abortion differently. Some states restricted it at quickening, then leaglized it as surgical techniques improved. Others went the other direction. Others didn’t deal with the topic until the 1950s. But the idea that abortion was a matter of state discretion was well understood. Then, poof, apparently the Constitution always outlawed it in the first and second trimesters but theoretically allowed restrictions in the third (not to be clarified until later that the actual attempts at enforcing partial bans on third term abortions would be struck down). Where in the Constitution is this trimester system? Where is this right to abortion? Why was everyone so stupid as to not realize that States never should have been allowed to rule on abortion? Where was the general societal consensus on abortion that might make for an unenumerated right? What happened to amending the Constitution to protect rights which were not previously protected?
     The recent death penalty case is another classic example. Does the Constitution allow 17 year old murderers to be treated as adults for the purpose of punishment? It certainly did the last time the Supreme Court looked at the question. Can MA put a 17 year old murderer away for life just like they do adults? Absolutely, you can lock up a 17-year old murderer for the rest of his life and no whining about 17-year olds being unable to make rational decisions changes that. But if the punishment in question is the death penalty, suddenly THE CONSTITUTION SAYS that you can’t treat him like an adult. Really? Where does it even allude to that? Kennedy doesn’t claim that the the Constitution says that the death penalty is illegal–only hardcore activists like Brennan said something that ridiculous. He doesn’t say that 17-year olds can’t be punished just like adults if they commit their crimes in non-death penalty states (which is what the ‘tender age’ rationale would suggest).
     People accept that the law is complicated, but they don’t like to see things get obviously twisted. Neither of those two decisions make sense given the text of the Constitution. And if you are going away from the text, it would be nice to tie to the traditional understanding of things, because that insulates you somewhat from the charge of just twisting the law into whatever you want it to be.
     Those on the left are quick to see how Bush twisting the law near the breaking point of rational understanding is bad for society–and they are correct. What they are not quick to see is that they have been engaging in exactly the same kind of hyper-technical game playing for decades with their pet topics and the law. Even if you want to defend each ‘little’ step as being justifiable bending of the previous rule, a neutral observer would have to admit that the change in law from Griswold to Roe was enormous. None of the major players on the right or the left set out to undermine the rule of law. They just want one little compromise, one little bend, just to be fair. If we let judges play that game, they get to add compromise after compromise for decades with no check on where things are ending up. That is why it is the elected branches that are supposed to make the compromises–they can be punished directly for going too far. You can just vote them out. Judges are supposed to uphold the law as it has been enacted by the duly authorized body. They are to enforce the compromises struck until new ones are struck.

107. One: Sebastian, would you please start indicating who you’re quoting from, especially if you shift from one author to another? It’s incredibly irritating to backtrack all the references.
     Two:
     I deeply wish that moderate judges could be nominated and confirmed, but the fact that Democrats opposed judges like Pickering strongly suggests that they will make play dirty with high profile positions no matter who is nominated…. Democratic tactics against him strongly suggest that they don’t want moderates on the bench.
     Bollocks. Complete and utter bollocks. Unless you’re willing to claim, in defiance of all common sense, that all of the 190+ judges nominated by Bush and confirmed by the Senate were immoderate (and specifically leftists).
     Do you even begin to realize how ludicrous that is? How, to second Gary’s word, crazy that is? Or are you simply ignoring these inconvenient details?
     You seem to think that Pickering was unfairly treated and that’s your right and due. [I don’t, as it happens, but them’s the breaks.] Your induction from that case to the general, however, is simply broken. It is beyond false. It bears no resemblance to what has actually happened. The only way I can possibly salvage some sense from it is to alter what you’re saying to be the fevered hallucinations of Bush’s mind — in which case you might well be correct, although I doubt it — having no bearing on the real world.
     Other than that… what on earth are you talking about, man? I’ve never seen you so unabashedly capitulate to a GOP talking point before; what’s going on here?

108. “Unless you’re willing to claim, in defiance of all common sense, that all of the 190+ judges nominated by Bush and confirmed by the Senate were immoderate (and specifically leftists).”
     Ah well then, I guess Bush isn’t really trying to pack the Courts with conservatives… right? So all the talk about Bush trying to ‘take over the judiciary’ is just a bunch of whining. Right? Ok, I accept that Bush isn’t trying to take over the judiciary and has just nominated a few judges that you don’t like. Whew, no big deal.

109. “I deeply wish that moderate judges could be nominated and confirmed, but the fact that Democrats opposed judges like Pickering strongly suggests that they will make play dirty with high profile positions no matter who is nominated.”
     Sebastian, with 190 out of 200 of President G. W. Bush’s nominees confirmed by the Senate, how can you possibly say that? The fact is, the Democrats have confirmed 190 out of 200 nominees. It’s obviously flatly, objectively, untrue to say they’ll “play dirty… no matter who is nominated.” Your position appears to be that if any nominees are blocked, that’s an outrage. (But blocking 60 out of 200 was fine.)
     “How about Roe? Maybe Eisenstadt?”
     I appreciate your answering that, and clarifying a bit where you’re drawing the line (and taking the time to write the rest of your response). Thank you.
     “I’m complaining about marrying judicial review to an not-very-limited reading of the grounding documents which lets judges like O’Connor play the “make up a 6 part amorphous balancing test out of thin air to get the result I want and leave everyone confused about the state of the law going into the future” game. Judicial review makes sense in a compare the lesser statute against the superior statute and check for contradictions sense. That is a check on power. It does not make sense in a compare the lesser statute against what I feel the superior statute ought to be like and check for contradictions sense.”
     Now, that, and a fair amount of the rest of what you said there, I have no problem with as a legitimate debate, and you would likely find that I agree with you in at least bits and pieces, here and there, if we discussed this in considerable detail (although we’ll also still disagree over various things).
     I also have no problem with objections to some of the reasoning in Roe. This is the difference, in my view, between a perfectly reasonable discussion about judicial philosophy, and what Frist and co. have been doing, which is simply lying like mad in making claims about non-existent rights in the Constitution (something I’d think you’d strongly object to) demanding a floor vote, or insisting that judicial filibusters are a recent Democratic invention, which are both flat lies (again, I don’t believe on your part, though I urge you to simply examine the facts).
     “The recent death penalty case is another classic example.”
     I also agree this is another case it’s perfectly reasonable to debate, and I’m of little mind to disagree with you about it, actually.
     “And if you are going away from the text, it would be nice to tie to the traditional understanding of things, because that insulates you somewhat from the charge of just twisting the law into whatever you want it to be.”
     I have no particular argument with this.
     However, since we know perfectly well that the Democrats will let pass 190 conservative judges, it seems perfectly obvious that the President can find another 190 where they came from that the Democrats will also let pass. Demanding a right that no President in history has ever asked for, or had, the right to ram through every single nominee, no matter what the entire minority party thinks, that’s unprecedented, and that’s undeniable fact, and there’s nothing, for God’s sake, conservative about that, is there? (It’s also utterly contrary to the spirit of the separation of powers and the history and historic power of the United States Senate; I have no doubt that if the Republicans succeed, the day will come that you, and many others, will rue it; that’s not a threat — it’s a desperate plea to stop and think about this (well, I’d rather Republican Senators did, but probably there aren’t any reading this). This is a radical, radical, thing being done. (Please, just imagine the Democrats were in power and trying this; what would you think?; what would you say?)

110. Sebastian, maybe it’s just me, but while I recognize perfectly well that your post of 07:51 PM is sarcastic, I genuinely don’t have a clue what you’re trying to say in it. (Unlike your entirely articulate lengthy comment I just responded to.) FWIW.

111. Sebastian, maybe it’s just me, but while I recognize perfectly well that your post of 07:51 PM is sarcastic, I genuinely don’t have a clue what you’re trying to say in it.
     Likewise. Would you mind expanding?

112. Sebastian, I give you credit for sticking with this discussion on a topic that touches on issues about which you obviously have very strong feelings. And thanks for clarifying some issues in your 7:23 post (although I don’t quite see how you get from “Pickering should have been confirmed” to “Democrats will block any moderate conservative” when they clearly haven’t).
     But I want to draw a parallel between your thoughts on the confirmation wars and your thoughts on judicial philosophy. I agree with your core thoughts that both the judicial confirmation process and the proper role of judges have been abused by both parties (although I’m sure we’d find disagreement quickly enough if we start citing examples). But in the same way that you’re saying (I think) that whatever the Rs may have done when Clinton was President, the payback has to end because it’s doing too much damage, could you not also recognize that whatever the sins of the Warren Court, the answer is not rightist hacks like Owen and Brown? You seem to be suggesting that “they did it to us” is reason enough for the Rs to want to confirm Brown but not reason enough for the Ds to want to filibuster her.

113. “But in the same way that you’re saying (I think) that whatever the Rs may have done when Clinton was President, the payback has to end because it’s doing too much damage, could you not also recognize that whatever the sins of the Warren Court, the answer is not rightist hacks like Owen and Brown?”
     The sins of the Warren Court are still bad law and are still perverting the courts to this day. Yes, the proper response is not rightist hacks. The proper response is thousands of judges who understand that their place is deference to the documents they are to enforce. The problem is that at some point the bad precedents have to be overturned–which is going to look like activism unless there is a clear commitment by both sides to return the judiciary to its proper role. If the left gets to play with activism whenever it is in power and then gets to rely on precedent to pretend that the activism never occurred whenever it is not in power the Constitution gets left by the wayside. The problem is that there are conservative judges who will overturn previous activist precedent because they are counter-activist and there are others who will do so because they are activist conservatives. With a strong commitment from both parties to rein in judicial activism, we could be spending all of our time arguing about how to sort one from the other. But with counter-activist but moderate judges like Pickering getting slammed early to set the tone for the current judicial fights it becomes clear that Democrats are more about protecting litmus tests rather than finding judges who believe in textual fidelity. This makes sense because the upper echelons of the Democratic Party see the courts as a tool to engineer social change not as a mere check against legislatures or executives going beyond their Contitutionally mandated bounds.
     The Republican Party on the other hand is deeply divided on the issue of courts. Many want to return courts to their traditional check function but limit games in the social engineering realm to their traditional place in the legislatures (or via amendment). Others see that judges have been a very successful tool in the hands of leftists when it comes to evading legislative accountability, and would like to utilize that tool for conservative aims. The Democrats in Congress are attempting to define a limit of acceptable right/left philosophy for a judge. That is the game that I think is destroying the country’s respect for law. Democrats in Congress are specifically not attempting to argue that it is illegitimate for Courts to make decisions on the basis of political philosophy. They just argue about which political philosophy is ok in a judge. That is the debate that is going to destroy respect for the courts.
     The terms of the debate need to change–either we rediscover the value of letting judges enforce things in a predictable way until legislatures and Constitutional amendments change things, or the courts become a mere extension of all other political fights. At the moment this is just a political fight about who controls the illegtimate tool. If that is all the fight is going to be about, I’m a conservative and prefer conservative judges.
     I don’t want that to be what the fight is all about. If Democrats were regularly opposing judges on judicial grounds I would engage that at the time. They aren’t, they occassionaly throw a bone my way rhetorically but given the sacred status of Roe v. Wade in the Democratic Party, they are just teasing me. They engage on political grounds. And if you engage on political grounds you get political results. If judges are just another political tool, and that is how the Democratic Party has framed it for decades, I’m not going to choose their tools over those who are more politically like me.
     My comment to Anarch was half-sarcastic. If Bush is nominating 190 moderates out of 200 judges, why are you so worked up about Bush trying to stack the judiciary?

114. Since we have returned to the notion of activist judges (and I presume that Seb feels that the ones that the Dems are blocking are _not_ going to be activist, given his strong distaste of activism from the bench), I would like to renew my request of Seb to list which _current_ judges he has in mind who he feels are activist and to explain why these blocked judges are not activist.

115. Sebastian: ” “Unless you’re willing to claim, in defiance of all common sense, that all of the 190+ judges nominated by Bush and confirmed by the Senate were immoderate (and specifically leftists).”
     Ah well then, I guess Bush isn’t really trying to pack the Courts with conservatives… right? So all the talk about Bush trying to ‘take over the judiciary’ is just a bunch of whining.”
     No; all this shows is that we are only opposing the ten most awful judges. We might be letting 190 very, very conservative judges through and just drawing the lines at these ten, in despair. Or we might be letting the moderates through and drawing the line at extremists. Or somewhere in between (my actual view.) But I second what has been said about its being very odd to claim that Democrats will oppose anyone Bush nominates, however moderate, in view of the fact that they have not opposed most of his nominees.
     Also, probably too picky a point, but I’ve thought of making it before so I may as well make it now: you often point out that the trimester system is not in the Constitution. As I understand it, the trimester system is an answer to the question: the state does not have grounds to curtail the liberty of a woman to protect the life of a just-fertilized embryo, but does have grounds to curtail her liberty (e.g., by imposing on her the choice between the positive duty to care for her child and giving up custody) in the case of an infant, where do we draw the line? (Or some such question; too lazy to go reread Roe right now.) Courts often come up with tests like this in response to questions that statutory interpretation requires that they answer, but that the statute itself does not answer.
     So, to pick an obvious example, the 4th Amendment contains no reference to something being “in plain view”, but that doesn’t (to me) show that the claim that you can e.g. go walking around someone’s house, on the sidewalk, looking to see whether something incriminating is in plain view without a warrant, and not be violating the 4th amendment by conducting a “search” of their house, is just a piece of judicial activism. Plainly, the 4th amendment needs to be supplemented by some account of what actually counts as a search, an account that should be plausible and straightforward, and the fact that the court came up with one is not, in my book at least, evidence of judicial activism.
     I would think that the trimester system would count as evidence of judicial activism only given an antecedent conviction that our rights under the Constitution do not include a right to abortion, and thus that any such test is just more activism.

116. Sebastian: “If Bush is nominating 190 moderates out of 200 judges, why are you so worked up about Bush trying to stack the judiciary?”
     Because they are really, really dreadful. See my earlier posts on Brown, and the speech I referenced earlier.

117. Kennedy’s opinion on the recent death penalty case was highly activist. Both Kennedy and O’connor are activst Supreme Court Justices. I note that O’Connor is often activist in a pro-right way. I think that is illegitimate, but would obviously choose her over Brennan if those were my choices. Scalia to pick a sore spot is not an activist judge. He regularly rules in ways that are against his extra-legal judgment. O’Connor can balancing-test her way out of almost anything, Scalia usually does not. O’Connor is proof that activism is an accepted mode in Supreme Court decision-making which transcends mere left/right tendencies. Thomas has definite activist tendencies, but often restrains them.
     I repeat, the Democrat leaders are not asking me to have non-activist judges. They want me to choose between left-wing activists and right-wing activists. Given that choice I will support right-wing activists. Or perhaps more accurately they know they can’t get left-wing judges in at the moment but they want to retain the judiciary as a tool for social change to be rammed down people’s throats later. They want non-activist judges who commit to not overturning left-wing activism so that activism can be a one-way street in the judiciary. My choice is not between counter-activism and activism. My choice is between left-wing activism and a mix of counter-activism and right-wing activism. Between those choices I choose the second because I would rather have some counter-activists and if I must have some activists I would prefer that they be on the right. The Democratic party may someday wake up to the systemic advantages of having a branch of government that is not activist in nature, but that day has not yet come. I only hope that by that time the Republican Party has not become fully enamoured by right-wing judicial activism.

118. “This makes sense because the upper echelons of the Democratic Party see the courts as a tool to engineer social change not as a mere check against legislatures or executives going beyond their Contitutionally mandated bounds.”
     Could you name some names here, please? (I don’t know why you wouldn’t want to, since you know this as a fact.) Do you have some, you know, supporting cites to point to? Revealing speeches, papers, that sort of thing? (I assume you’re not suggesting a secret plot.)
     “The Democrats in Congress are attempting to define a limit of acceptable right/left philosophy for a judge.”
     Although I respect and thank you for your attempt to describe what you think both Democrats and Republicans are doing, and recognize that you’ve made an attempt, specifically, to describe how you think they differ, I remain baffled how you might be able to not switch the word “Democrats” for “Republicans” in that sentence. Republicans are for no limits on how far left or right a judge should be? Surely not.
     I mean, if you want to just argue that Democrats are “too far left,” well, that’s a debate, but your POV would make sense to me. But arguing that Democrats are bad because they don’t want extremists at either side, but some middle ground, well, without sarcasm, what exactly is so terrible about that?
     “That is the game that I think is destroying the country’s respect for law.” Being for “limits” and moderation? Say what? I’m going to presume this was just a poorly put couple of sentences, and not actually descriptive of what you were trying to say.
     “If judges are just another political tool, and that is how the Democratic Party has framed it for decades, I’m not going to choose their tools over those who are more politically like me.”
     Could you do me a favor, and name five Clinton appointees that are examples of this horrific politicization of the courts, so we have some specifics to discuss, please? (I’m sure you must have loads of specifics in mind, since the courts are so packed with these folks, according to you; presumably you can name dozens and dozens out of these “hundreds,” so five should be utterly reasonable to ask about.)
     “If Bush is nominating 190 moderates out of 200 judges, why are you so worked up about Bush trying to stack the judiciary?”
     If? What do you actually think, Sebastian? Has President Bush been, in those 190, nominating liberals? Excessively moderates? And if no one makes the “stack[ing] charge,” would you then still say that there could not possibly be any reasonableness, sense of compromise, or moderation, in the Democrats blocking only 10 out of 200, only one-sixth of the number of judges the Republicans blocked in the last go-round? It’s not as if, you know, anyone is denying that the President has the right to nominate whom he wants, or that the majority is entitled to see the overwhelming majority of them confirmed, despite disagreeing with their philosophy. How can 190 out of 200 as a success rate be so unbelievably offensive that Senate procedures have to be radically changed?

119. Sebastian, with all respect (and I really, truly respect your engagement with this thread), I can’t reconcile your account of what’s going on with what I’m seeing. It seems to me that you’re painted Republicans as considerably more principled than they have been and Democrats as considerably less so, and while there’s been plenty of unprincipled behavior on both sides, I think it makes more sense to try to build a compromise around both parties’ better behavior than to continue the “they did it first” act any further.
     This, I think, is off target:
     The Democrats in Congress are attempting to define a limit of acceptable right/left philosophy for a judge. That is the game that I think is destroying the country’s respect for law. Democrats in Congress are specifically not attempting to argue that it is illegitimate for Courts to make decisions on the basis of political philosophy. They just argue about which political philosophy is ok in a judge. That is the debate that is going to destroy respect for the courts.
     I think it’s precisely the role of the Senate in the advise and consent process to define an acceptable range of judicial philosophy, provided they’re actually looking at how a nominee approaches the law and not what results the nominee will seek to achieve. I think that’s what you’re looking for, too. I’m sure that some Democrats in the Senate oppose Owen because she’s anti-abortion or whatever, but I’m also sure that others oppose her because she’s a God-awful, result-oriented hack, and those aren’t OK regardless of what results they’re seeking to achieve. Why wouldn’t it be the beginnings of an appropriate climb-down for both sides to agree to let the Owen nomination come to a floor vote and to defeat it when it does?

120. “if you won’t agree to my moderate nominees, you aren’t going to get more liberal ones, you are going to get more conservative ones until the issue comes to a head and we can try to return to normal.”
     I only have a moment to address your post and only this aspect of it.
     Since when have you noticed this president to not push the envelope and then declare the center has moved. I see no track record to expect he would “return to normal.”
     Otherwise, despite a democratic majority until 1994, realize that republican presidents have controlled the nominees for the last 24 of 36 years. The ‘liberal’ “activist” judges there were all nominated by democrats?

121. Here are some interesting figures from the heavily-Bush-favoring American Enterprise Institute:
     Judicial Nominations
     Percent of nominees confirmed
     Carter: 93.1%
     Reagan: 96.1%
     Bush I: 78.1%
     Clinton: 87.9%
     Bush II: 96.6%

122. Sebastian says: “Bush seems to be saying something along the lines of ‘if you won’t agree to my moderate nominees, you aren’t going to get more liberal ones, you are going to get more conservative ones until the issue comes to a head and we can try to return to normal.’
     Charles says: “The old forms of blocking and delaying made sense when Senators weren’t so political over judges, and when the atmosphere was more collegial and less polarized. Those quaint traditions don’t apply any more. This is straight, ugly, bare-knuckled power politics, and I don’t see it changing back. Ever.”
     Would you guys possibly like to duck out into the hallway and get your stories straight?

123. Would you guys possibly like to duck out into the hallway and get your stories straight?
     I’m worried fisticuffs may occur…

124. Gary, no fair. Sebastian isn’t responsible for Charles. At least give him credit for sticking around and talking while we all keep piling on him.

125. “Gary, no fair. Sebastian isn’t responsible for Charles.”
     I didn’t say they had any obligation to agree, DaveL. I just asked them if they’d like to.
     Incidentally, although it belongs in another thread, as I just passingly noted on my blog, I just watched Pat Buchanan be himself by ranting for a segment of The McLaughlin Group on the topic that the Newsweek Koran-flush story was “seditious.”

126. Onthis page there’s a link to video of Santorum saying that the New York Times endorses the same sort of secularism and suppression of religion as Fascists, Communists, and Ba’athists. It’s really awful.

127. “I mean, if you want to just argue that Democrats are “too far left,” well, that’s a debate, but your POV would make sense to me. But arguing that Democrats are bad because they don’t want extremists at either side, but some middle ground, well, without sarcasm, what exactly is so terrible about that?”
     No, I’m arguing that Democrats don’t mind really far left extremists, and they don’t mind judicial activism as a concept. You are confusing my discussion of activism with left/right extremism. The Democratic Party is very much pro-activism from the Courts. Hence the constant Roe litmus test. I presume I don’t need a cite for the Roe litmus test? Hence their approval of the recent capital punishment ruling. Cite necessary? Hence the disapproval of the Lopez case mildly limiting the federal government’s reach into local affairs.
     Clinton appointees who are activist, thanks for asking:
     Richard Paez 9th Circuit. Recently ruled (directly contrary to Supreme Court precedent) that CA’s 3 strikes rule was unconstitutional. Strongly hinted before confirmation that CA’s rule banning racial preferences in state decision-making was unconstitutional.
     Ann Aiken (nominated) for her huge number of creative interpretations of environmental issues.
     William Fletcher (9th) especially for his rather ugly Brosseau decision.
     Breyer (Supreme Court) especially odious are his repeated invocations of international precedent as a dispositive factor.
     Joseph Bataillon (U.S. District Judge Nebraska) for his incredibly tortured idea that a state constitution which forbids gay marriage violates the 1st amendment because: “The knowledge that any such proposed legislation violates the Nebraska Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends”
     Margaret McKeown (9th) for her incredibly strident even-for-a-Democrat abortion views and her charming advocacy indicating that allowing people to sign petitions regarding a Washington state ballot measure shouldn’t be allowed because it might trigger hate crimes.
     I’ll admit that wasn’t off the top of my head, I had to look up McKeown to remember what ticked me off about her.

128. if you want to understand why conservatives are angry look into the quickly escalating number of laws overturned by the Supreme Court on a decade by decade basis since Marbury.
     Um. This only stands as evidence that the courts have become more activist if one accepts as a premise that Congress is not passing a lot more unconstitutional laws from decade to decade. Which, given the propensity for Congress to claim that the Commerce Clause entitles them to control, well, pretty much everything, I do not accept as a premise at all. Not even a little.

129. This only stands as evidence that the courts have become more activist if one accepts as a premise that Congress is not passing a lot more unconstitutional laws from decade to decade.
     Another possibility: that Congress had actually been passing a lot of unconstitutional laws from decade to decade and the Supreme Court only recently got the balls to call them on it.

130. Whose opinion is the following comment addressing?
     “Rather, noting the important lawmaking role of American courts, the majority concluded that the dissenters “greatly exaggerate[d] the difference between judicial and legislative elections.” ”
     Hmmm, courts having a ‘lawmaking’ role? Must be some liberal.

131. Republican Party of Minnesota v. White
     I do take umbrage though at Democrats not minding ‘really far left extremist(s)’ judicial nominations. I haven’t been aware of too many extreme left judges getting elected or appointed in the first place. Lefty’s? Sure. Far, far lefty’s? No.

132. Links ‘r good.

133. I, too, don’t much care for the ‘Democrats don’t mind really far left extremists’ business. I don’t, for one. Given that Sebastian earlier cited litmus tests about not overturning Roe as evidence of activism, though, I wonder if he thinks that anyone who would not overturn Roe counts as a far left extremist. In that case I would just say that I think this overlooks the number of non-extremist people like, oh, me who sincerely think that whether or not Roe itself was correctly decided, Casey was.
     And who is the following from?

     “I know the idea that there is an extra-constitutional dimension to constitutional law is heresy. And given our recent history, it is a very scary thought. But I am coming to agree with X’s assessment: it is the hubris, carelessness, and lack of candor of judges that should concern us — not the label active or passive. If judges tell us honestly what they are doing, we do know something about the world view that animated the American Revolution and formed the basis of our constitutional documents. … (The Founders’) ideas — expressed with precision and detail — will allow us to judge the bona fides of judges audacious enough to invoke higher law. (…)
     The positive law is not enough. Never enough. When I was growing up the positive law declared that some people were more equal than others. But that law, judged by a higher law, was wrong.

134. “And who is the following from?”
     Someone who knows that we live in “a debased, debauched culture which finds moral depravity entertaining and virtue contemptible,” thinks me!
     Damn virtue, I say! Out, damn virtue! And now, I go to enjoy some moral depravity.
     Incidentally, I deleted a paragraph from a previous comment in which I waxed a bit about what might be “far left” or not (such as, it helps to be, say, for a fully socialized state owning the means of production, or something actually, you know, leftish, not just the sort of liberalism that, say, at least 46% of the American public tends to believe in according to polls).
     Sebastian, I appreciate your response of 2:57 a.m. (I’m glad it’s six hours earlier where I am; why is the blog apparently set to a timezone in the middle of the Atlantic?) We’ll see if I respond tomorrow. 🙂

135. “Sebastian, I appreciate your response of 2:57 a.m.”
     Okay, that’s what it said in “preview.” Now it says that post of Sebastian’s was at May 20, 2005 10:57 PM, which is East Coast time. Whatever. (Regardless, no more long responses from me tonight.)

136. I see it too, Gary. The times are normally US Eastern Time (currently daylight saving), but on preview they turn into UTC.

137. “Given that Sebastian earlier cited litmus tests about not overturning Roe as evidence of activism, though, I wonder if he thinks that anyone who would not overturn Roe counts as a far left extremist.”
     I think I didn’t explain my objection to the litmus test properly if you think that is linked to far left extremism. I have two gripes about the Democratic party that are only loosely related and which definitely should not be considered interchangeable. It is leftish. I am rightish. Not surprising that I prefer rightish to leftish under those circumstances. The modern Democratic party is pro-judicial activism I am anti-judicial activism. The Republican party is rightish. I am rightish. So when that is the dispositive factor I tend to be pro-Republican. Unlike the Democratic party, the Republican party is almost evenly divided between anti-judicial activism and pro-judicial activism (so long as it is for the right) camps. (Basically if the only thing I know about you is that you are a committed Democrat, I can make a very plausible guess that you tend to be ok with judicial activism. If the only thing I know about you is that you are a Republican I really can’t make a good guess on the topic)
     Minor digression: I really do think those sentences are an accurate probabilistic description. I don’t, however, believe that it occurs that way because there is anything particularly noble or special about Republicans. The activist courts of the past generation and a half have been left-oriented. Therefore it is no surprise that conservatives would appreciate the dangers of a runaway court more than liberals. This hypothesis also explains why it is the very young liberals (such as Katherine) who are finally beginning to see some of the value of noticeably advocating judicial restraint in some circumstances–they worry about Republican judges in power in ways that liberals never had to when Burger was in charge.
     In any case, back to the litmus test. Kinda liking the outcome of Roe is one thing. Agressively saying that no one who is opposed to the jurisprudence of Roe is fit to be a judge (which is the Democratic position) is a pro-judicial activism stance. It has very little to do with being a leftist stance. Democrats in the Senate are pro-judicial activism but they like the activism to be leftist. They don’t devate judicial activism, they assume it. The only question is whether the activists will be for the left or the right. If those are the only terms of engagement, I prefer the right (see above). But in an ideal world where anyone really bothered to listen to me, I prefer non-activist judges. This has the nice side benefit of me not having to worry too much about whether some is left or right–if they give judicial deference to real texts their political leanings aren’t super-important. Their leanings may color things on the side, may be a slight factor in super close cases. But generally it shouldn’t matter.
     So I don’t think that anyone who wouldn’t overturn Roe is a far left extremist. You might be a conservative who thinks unsettling that kind of law at this point after 32 years isn’t worth it. But if your test is that people who would overturn Roe are unfit to be high court judges, that is a different story. And it is the Democrat leadership position.

138. By the way, my quote above was taken from a summary of a Scalia decision.
     I’d agree that the closer to impartiality the better.
     Of course I don’t see this administration agreeing with me. They seem to always move toward the slippery slope then halfway down say “Well, we’re here now so let’s not think woulda coulda shoulda. Let’s move forward.”
     Their forward is farther away from your ideal as well as mine.
     But then again, you seem to think Bush’s brain should be given 100% confirmation on his judicial choices.
     I don’t believe he is either that brilliant or principled. He is a politician who wants to garner more power (don’t they all) and seems to have gotten some folks to believe that anything less than 100% is denying him his due.

139. Sebastian,
     You claim that there are Republicans who are opposed to “judicial activism,” whether of the right or left. Could you identify some, other than yourself?
     My impression is that is fairly clear that some of the Bush nominees could be considered conservative activists. If so, then why are they very likely to be confirmed if they come to a vote? If anything approaching half of Republicans oppose right-wing activism wouldn’t such nominees be doomed? It’s not as if defeating Brown is going to result in Bush appointing a left-winger instead.
     I put “judicial activism” in quotes because it is not clear to me that it is a meaningful term rather than a politically useful slogan. I think, for example, that some of the decisions the Warren Court was criticized for were not at all activist in terms of finding new things in the Constitution, but perhaps were in the sense of insisting on enforcing things that were there. I am thinking of religion cases, criminal law cases, civil rights cases, for example. I assume you do not object to this sort of “activism,” but the notion that the Bill of Rights means what it says has seemed to be a source of considerable irritation on the part of conservatives.
     So, recognizing that I have no legal training (except some hard-won knowledge that is irrelevant here) and am not fully up on the details, I still remain unconvinced that there are a substantial number of people who are opposed to judicial activism as a matter of principle, rather than merely liking to use the phrase to claim nonpartisanship when criticizing decisions they dislike.

140. Seb
     Thanks for the list and sorry to take so long to get back to it. All this is early morning googling, so if anything is amiss or I’ve missed something, please let me know.
     Richard Paez 9th Circuit. Recently ruled (directly contrary to Supreme Court precedent) that CA’s 3 strikes rule was unconstitutional. Strongly hinted before confirmation that CA’s rule banning racial preferences in state decision-making was unconstitutional.
     Paez was the one that Frist attempted to filibuster (his nomination was held up for 4 years) and the vote was 85-14, including Senators such as Hatch, Grassley, Sessions, Santorum, Lott and Nickles. This article also struck me for the contrast between how one does get nominees through and how Frist is attempting to do it. (I realize that it is from Reid’s website, but it was originally in the Roll Call, if the attribution is correct)
     Ann Aiken (nominated) for her huge number of creative interpretations of environmental issues.
     
     You might be surprised that I agree with you at Aiken, knowing people who were effected by her decision in the Klamath case. She was confirmed 60-37
     William Fletcher (9th) especially for his rather ugly Brosseau decision.
     William Fletcher, waited 3 years before being voted on. The Brosseau decision (of which people can pick at, but I’ll just link) was a 2-1 decision with the concurrence by Stephen Reinhardt and I wonder why you didn’t list him other than the fact that he is a Carter appointee and publically blasted Clinton for not appointing more liberal judges. There is an interesting interview with Reinhardt here. This was particularly noteworthy, I thought

     7. The filibustering of judicial nominees whom the Republican party depicts as the antithesis of you is likely, whenever the Democratic party regains the White House, to lead to the filibustering of nominees perceived as too much like you. Is a moderates-only judiciary something to be preferred over a judiciary filled with Borks and Reinhardts, and if not are you willing to urge Senators to stop filibustering judicial nominees on the basis of the nominees’ perceived ideology?
     I do agree that a judicial system is better off with a mix of able, intelligent conservatives and liberals who may disagree on issues, than with a monolithic, mediocre group of moderates whose main virtue is acceptability. Nevertheless, I do not believe that it is in the interests of the country to have a president appoint only judges with extremely conservative views. So long as the president follows a policy of making his appointments for ideological reasons, and of appointing only judges who share his philosophical point of view, the opposing party has the right, if not the obligation, to block at least some of the most extreme of those nominees in order to attempt to bring some balance to the judiciary. If, on the other hand, a president decides to be a “uniter, not a divider,” by appointing some judges with independent or differing judicial philosophies, and to insure some balance in the federal courts, there would be less reason for the type of opposition that we have witnessed in the past two or three years. In short, given the present circumstances, I would be more inclined to urge the president to change his approach to judicial appointments than I would to urge the senators to stop filibustering the most extreme of his nominees. So long as appointments are made on ideological grounds, and there is no room for the appointment of persons with different points of view, opposition based on ideology is perfectly appropriate, as is the use of all proper procedural means to make that opposition effective.
     Much of the purported outrage over the use of the filibuster to block nominees appears to me to be both hypocritical and cynical. It can best be explained as part of a purely partisan attempt to manipulate public opinion. The use of a filibuster is indisputably more democratic than the use of the one-Senator “holds” that were so often used, frequently in secret, to defeat nominees during the Clinton Administration. The Republican controlled Senate blocked 63 Clinton nominees between 1995 and 2000. Since 2001, the time at which the “filibuster crisis” allegedly began, the Senate has failed to confirm just 6 of the President’s 168 nominees.

     Also, I hesitantly dip my toes into the legal waters, but reading the Supreme Court unsigned reversal, it says

     Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. … Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.

     and noted that the case falls in “hazy border between excessive and acceptable force”. IANAL, but this suggests that the Supreme Court doesn’t have quite the opinion that you do (it was decided 8-1)
     Breyer (Supreme Court) especially odious are his repeated invocations of international precedent as a dispositive factor.
     
     The question of Breyer and international precendent is very interesting to me (living in Japan) but I hope you’ll agree that it deserves a separate discussion.
     Joseph Bataillon (U.S. District Judge Nebraska) for his incredibly tortured idea that a state constitution which forbids gay marriage violates the 1st amendment because: “The knowledge that any such proposed legislation violates the Nebraska Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends”
     
     Joseph Bataillon, who was approved 100-1, brings up some interesting googlage, here and here (warning, freerepublic post)
     On the other hand, this op-ed from a Nebraska newspaper has a different take, as does this one. The original decision is here
     Margaret McKeown (9th) for her incredibly strident even-for-a-Democrat abortion views and her charming advocacy indicating that allowing people to sign petitions regarding a Washington state ballot measure shouldn’t be allowed because it might trigger hate crimes.
     McKeown’s confirmation took 2 years, if you are keeping track. Here is a book review by McKeown of Gerhardt’s _The Federal Appointments Process: A Constitutional and Historical Analysis_, which is rather interesting in light of what is happening.
     Sorry, I’m all googled out. Hope that provides something for discussion.

141. Sebastian: since I’m procrastinating, and LJ helpfully provided a link, I read the Bataillon decision, and I didn’t read it the way you did. First, the legislation he was saying that the Neb. amendment prohibits isn’t legislation permitting gay marriage, it’s legislation affording any of the legal rights and benefits that (straight) married couples enjoy to same-sex couples.
     His objections, as I read it, were: (1) that the statute referred to same-sex couples in a way that made it impossible to distinguish gay and lesbian couples from all sorts of other associations (can’t find the exact wording of the Neb. amendment, but it was something like: domestic partnerships, civil unions, or any other same-sex union similar to marriage, and he said: sheesh, similar in what respect? this is too vague.)
     (2): The Neb. amendment prohibited giving “any legal recognition” to such couples, and this (according to the Neb. AG) meant not just that they didn’t get to be called marriages, but that that none of the traditional legal perks of marriage — survivorship benefits, access for hospital visits, custodial rights, and so forth — could be given (even individually) to same-sex couples, since that would constitute “legal recognition” of them. And the judge said: you cannot deny them the right to advocate for such rights (not the right to marriage, but e.g. a specific sort of right to hospital visitation that is normally enjoyed by married couples. — Actually, the legislation that raised the issue would have given members of same-sex couples the right to decide about a deceased partner’s organ donation. The AG said: no, that’s “legal recognition”.)
     The judge argued that preventing same-sex couples (not to mention all the other associations that might fall under the unduly broad language of the Neb. amendment) from advocating for any of these rights was both a violation of their first and 14th amendment rights. But his point wasn’t the truly idiotic one that once something is deemed unconstitutional, it’s hard to argue for legislation that would legalize it; it was the rather different one that this particular amendment would have rendered great huge chunks of advocacy pointless by announcing in advance that there are certain sorts of protection and redress (all the individual rights and privileges normally associated with marriage) that this amendment would have prevented gays and lesbians from trying to get.
     He also argued that it was not distinct, in principle, from Romer. I agreed.
     In any case, ianal and all that, so I may just be missing something. But I didn’t see it the way your summary made it sound as if you did.

142. I should say: my knowledge of Romer is pretty teeny, so my ‘agreement’ that this case raised the same issues should have been prefaced by all sorts of qualifications, like: well, I don’t really know what I’m talking about, but it seemed to me…”

143. Hilzoy, at some point there you switched from talking about the amendment prohibiting legal recognition of same sex relationships to saying it was prohibiting “advocacy for such rights” (maybe Bataillon did the same thing?). Does the amendment actually prohibit advocacy? If so, that would seem to be a blatant First Amendment violation. If not, how is the argument about advocacy relevant?

144. “I wonder why you didn’t list him other than the fact that he is a Carter appointee”
     I was asked to provide a list of Clinton nominees who I felt were clearly judicial activists. There are lots of judicial activists from all Presidents I could have talked about if there was an unlimited list, but these are the worst offenders (that I know of) from the Clinton bunch.
     I don’t know what you mean when you say that the Supreme Court doesn’t have quite the opinion I do. The 9th Circuit ruling I mention was overturned by the Supreme Court 8-1. That means that even justices like Breyer and Kennedy thought the ruling was wrong.
     I don’t have time to pursue this further right now, but hilzoy I don’t understand the 1st amendment shift when you do it or when Bataillon does it. Volokh as an excellent discussion of the whole decision here . I agree wholeheartedly with his view on the First Amendment claim:

     That, I think, can’t be right. Most state constitutional provisions make it harder for people to enact certain laws — a state constitutional right to privacy, for instance, makes “chills or inhibits advocacy of [privacy-restricting] legislation” in precisely the same way as the Nebraska same-sex amendment does: People become less willing to advocate the legislation since they know it will be futile, so long as the amendment remains on the book. Likewise, federal laws “chill[] or inhibit[] advocacy of [state] legislation” that would be preempted by those laws. State laws “chill[] or inhibit[] advocacy of [local] legislation” that would be preempted by those laws. (For instance, state marriage laws, which to my knowledge always set forth rules that apply throughout the state and leave no room for contrary local decisions, equally chill or inhibit advocacy of city- or county-level marriage laws.)
     Of course, none of these laws or constitutional provisions violate the First Amendment; they don’t keep people from expressing their ideas — they just make it harder for people to turn those ideas into law. That is the very purpose of constitutional constraints on legislation, and the purpose doesn’t violate the First Amendment. But precisely the same is true about the Nebraska same-sex marriage amendment.

     One thing not mentioned in his analysis is the judicial deference concept that if a clause can be read broadly and be unconstitutional or narrowly and be constitutional it is to be read narrowly unless there is evidence that is being applied in the broad unconstitutional sense. This certainly ought to apply to the idea that the amendment would make it impossible to have contracted rights or other such rights to create rights of survivorship (via wills for instance).

145. Sorry, I didn’t mean that. Here (from one of LJ’s cites) is the amendment, in all its glory:

     “Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership or other similar same-sex relationship shall not be valid or recognized in Nebraska.”

     As I understand it from the decision, the crucial term is ‘recognized’. The AG been asked for an opinion on a proposed statute by a state Senator, and the decision describes his answer thus:

     “In the opinion, the Attorney General answered the following question: “If the Legislature Were to Grant Rights to A Domestic Partner to Donate Organs of a Decedent and Control the Disposition of a Decedent’s Remains, Would Such Law Be Constitutional?” (…)
     The Attorney General then noted that under the second sentence of the amendment, “no legal recognition is to be accorded to the union of two persons of the same sex, regardless of whether one uses the word ‘marriage’ or attaches” some other label to the relationship, such as ‘civil union’ or ‘domestic partnership.’” Id. at 2. After outlining the provisions of the proposed legislation, the Attorney General concluded that the proposed legislation would amend Nebraska law and the Uniform Anatomical Gift Act to give a domestic partner the same right as a surviving spouse to control and direct the disposition of a decedent’s remains—a right given priority over the rights of decedent’s parents and children that has traditionally been reserved to the surviving spouse. Id. The Attorney General concluded that “such legislation would create new rights which spring from recognition of a domestic partnership; a partnership which could comprise same sex couples.” Id. at 2. Because “the rights being created are placed on the same plane as rights which arise as a consequence of the marital relationship,” the Attorney General found that the proposed legislation “would be giving legal effect to a same sex relationship, thereby validating or recognizing it,” which would run counter to Section 29.”

     So: any granting of a right (like power over organ donation) traditionally reserved to married couples to a same-sex couple (or other ‘other similar same-sex relationship’) is, under this law, unconstitutional.
     Advocating that such rights be granted, as in the organ donation statute, is not banned, but it is pointless, since no statute can grant such rights under the amended Neb. constitution.
     As I read it, the key passage in the Freedom of Association argument (as distinct from the Equal Protection and Bill of Attainder arguments), is this:

     “Most importantly, in addition to burdening intimate and expressive associational rights, Section 29 erects significant burdens on the promotion of, or lobbying for, any legislative or governmental action that would eventually extend rights or recognition to gays and lesbians, or for that matter, would change the status quo concerning numerous applications of family law, custody, or adoption issues, thus affecting citizens other than gays or lesbians. See infra, discussion in Equal Protection part of this opinion. In its brief, the State admits that “[p]laintiffs have full access to the political process and may obtain the rights via legislation which married couples enjoy, so long as those rights are not premised on recognition of a same-sex relationship.” Filing No. 66, Defs.’ Trial Brief at 11. The fallacy of the State’s circular logic is apparent. In making this statement, the State concedes that full access to the political process and enjoyment of rights of married couples will be forbidden if premised on the recognition of a same-sex relationship. The evidence shows that the State regards any proposed legislation that would elevate a same-sex couple to the “same plane” as a married couple amounts to “a recognition” of the same-sex relationship. Marital status confers many rights that single people—gay or straight, parents or not—do not possess. Notwithstanding policies preferring marriage, there are or may be legitimate reasons, consistent with the goals of promoting stable family relationships and protecting children, for extending some rights or obligations traditionally linked to marriage to other relationships. A blanket prospective prohibition on any type of legal recognition of a same-sex relationship not only denies the benefits of favorable legislation to these groups, it prohibits them from even asking for such benefits. The State’s admissions establish that legislation seeking to extend any benefits once incident to or dependent on the marital relationship to a same-sex couple would violate Section 29. Indeed, enforcement of Section 29, as the State interprets the provision, could void numerous existing contracts, labor agreements and corporate policies that extend to same-sex partners any benefits once offered only to spouses. This is tantamount to denial of access to the means to effect any sort of social or political change. The knowledge that any such proposed legislation violates the Nebraska Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends. Proponents of any legislation that would enhance same-sex partner’s rights (including awarding benefits, allowing adoption, etc.) must surmount the hurdle of passing a constitutional amendment. This creates a barrier to participation in the political process that no minority population is ever likely to surmount.”

146. Sebastian: I wasn’t meaning to agree with the judge’s argument from freedom of association; only to say that what I took it to be was different from what (as I read your post) you took it to be, and a lot less nutty. Whether right or not, I am not competent to say. The ‘less nutty’ part comes from the combination of the ‘preventing people, not just from advocating that gay marriage be legalized, but from using the political system to gain access to a whole slew of protections etc. that everyone else might try to gain access to’, and (I thought) the ‘it’s too broad and vague’ part, which expended it even more.
     I thought that the equal protection argument was better. And perhaps best of all, in my uninformed opinion, would have been to say that the amendment was OK so long as ‘valid or recognized’ meant something a lot narrower than the AG argued. (E.g., not ‘possessed of any of the rights and privileges normally associated with marriage’, but something more like: recognized as a marriage. — He did discuss the possibility of severing the first and second sentences, but argued that (a) neither party had brought this up, and (b) as the public did not seem to have considered this amendment as having separable parts, he should defer to their understanding.)
     “Best of all”, here, meaning of course ‘as a legal argument’, not ‘my preferred outcome’.

147. I don’t know what you mean when you say that the Supreme Court doesn’t have quite the opinion I do.
     What I meant was that it appears to me (again IA really NAL) that the Supreme Court recognized that what the police officer did was not appropriate (several sections of the decision discussed how the car was blocked and could not have gotten out of the driveway, and how it had not yet begun moving when the shots were fired, and the location of bystanders etc.), but that one should give the police the benefit of the doubt. I’m not sure what your opinion is, but since you said “his rather ugly Brosseau decision” (and since it was a 2-1 decision, is it ‘his’ decision?), I took ‘rather ugly’ to mean ‘there was no possible way that anyone could have decided the way he ruled’.
     I also apologize, I didn’t realize you were responding specifically to Gary as I had asked you in an earlier thread for a list of activist judges that was not limited to Clinton appointees and I thought you were responding to my request.
     Also, Orin Kerr also posted on the decision and enabled comments. The trackbacks are also fascinating for both posts.

148. Maybe it depends on what the meaning of ‘judicial activism’ is. I’m not sufficiently immersed in the attainder and petition jurisprudence to say definitively, but this Nebraska opinion strikes me as an attempt to follow Romer. It’s not clear to me that this judge is just making up law to suit a preferred policy outcome. That is, I don’t see bad faith. Now I can imagine that people who think Romer was wrongly decided find this decision awful, but it’s not activism for a district judge to follow an ‘activist’ decision from the Sup. Ct. It’s required.
     As a political matter, I’d like to see the 8th Circuit either reverse or severely limit this. And maybe it will.
     I’d also like to see the President and others who support civil unions — he did say that he did, right? — encourage Nebraskans to pass laws allowing them.

149. Some sections of the opinion could be construed as attempts to follow Romer but not the 1st amendment stuff. The idea that the 1st amendment bans state constitutional passages that might make advocacy for certain things ‘futile’ in the sense that the advocates would need to repeal that section of the state constitution before they could get what they wanted is ridiculous. If that were true, all state constitutional passages would violate the 1st amendment because they all put limits on how political advocacy plays out.

150. Seb: that’s why I originally bothered to read the opinion: because I thought: that’s such a bizarre thing to say. (Newsflash! First amendment contradicts self: chills advocacy of restrictions on freedom of speech! Etc.) And that’s why I thought it was significant (again, not because I necessarily agree with the judge, but because I think it’s a different argument) that his view appears to be: the problem is that it bans gay and lesbian couples from seeking a whole large range of rights and benefits, many of which might be sought or conferred for reasons unrelated to the sanctity of marriage, but which gay and lesbian couples now cannot seek w/o a new constitutional amendment; and why passages like this one seem to me to matter to reading the opinion:

     “Notwithstanding policies preferring marriage, there are or may be legitimate reasons, consistent with the goals of promoting stable family relationships and protecting children, for extending some rights or obligations traditionally linked to marriage to other relationships. A blanket prospective prohibition on any type of legal recognition of a same-sex relationship not only denies the benefits of favorable legislation to these groups, it prohibits them from even asking for such benefits.”

151. But it doesn’t prohibit them from asking for such benefits. It prevents them from having such benefits. They’re still free to advocate for changing the constitution back. There may very well be valid arguments in the rest of the decision, but the free-speech point seems crazy. I still don’t see what would prevent it from applying to any provision of a state constitution (assuming that being part of the constitution is necessary — it seems to me that ordinary legislation would be somewhat “chilling” in the same sense). By the same logic, any provision would “prohibit” people from asking for its repeal.

152. I’m with KC, and expect the 8th Cir. to go this way as well. To disclaim again, though, it’s not my field . . .

153. Just to be clear: I wasn’t defending the 1st amendment argument, just trying to say what it I thought it was. (Unless “it’s not as nuts as saying, “making anything unconstitutional is unconstitutional” counts as a defense.)

154. Also, it’s less a free speech than a freedom of association argument, if my memory from last night is correct.

155. “Prohibiting” people from asking for benefits sure sounds like something related to free speech, not free association, but perhaps there are two First Amendment arguments going on.
     And it’s really “making anything state-unconstitutional is US-unconstitutional”. The argument presumably wouldn’t apply to a national amendment, although I don’t know for sure what happens if one amendment is judged to be inconsistent with an earlier one but doesn’t explicitly state that it’s overruling it.
     Oh, and IANAL either.

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