« Wouldn't it be nice .... | Main | Yet Another Bolton Post »

May 03, 2005

Comments

judges are not more of a threat than al Qaeda is, and they are certainly not the greatest threat we have faced in our history

That's cool with me. So let's just have a straight up or down vote.

DaveC--

You've got it. I vote against al Qaeda. Emphatically.

You've got it. I vote against al Qaeda. Emphatically.

Now I'm an academic -- and therefore liberal, pro-sodomy, anti-American and generally pinker than my underwear (to steal Nixon's campaign phrase) -- but you know what? In the interests of comity, I'll second that vote.

daveC, since we're talking about the rule of law, shouldn't that apply to the Senate as well? Or can the majority just make up new rules whenever it feels like, even if the rules say that 60 votes are needed?

ps, i like anarch's and Ted's answers more than my own.

Or can the majority just make up new rules whenever it feels like, even if the rules say that 60 votes are needed?

Hmmm...what if the rules say the majority can rewrite the rulebook?

I believe that if any single thing constitutes 'the fabric that holds our nation together', that thing is our respect for the rule of law...

I agree with this, but I would add that America history also has had a pretty virulent streak of evasion of law when the law is "inconvenient," which is also not all bad since the law can itself be a tool of oppression. Civil disobedience is founded on this notion, and is attacked for fomenting a disrepect of the rule of law. Americans can be ornery about the law, and that has also been a good thing.
______

But Ayatollah Robertson is odious -- preaching the disrepect of our legal institutions based on made up nonsense. It is a religion of hate.

What do our Republican friends think of their party making a pact with this devil? No one on the right dares to speak out against it.

Maybe just to try to save this thread from terminal whataboutery (to use David Velleman's phrase) I should say:

Hilzoy, I think your post is very informative, and I agree with it.

Since this is a pluralistic site, I am sure it will prompt informed opposition from those who will disagree with it, and I am sure that any disagreements will be directed to the substance of the case you made. I look forward to reading their counter-arguments.

What do our Republican friends think of their party making a pact with this devil?

What, I missed something again?

Slarti: the Senate rules require a 2/3 vote to amend.

"And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of."

(Aren't the internets wonderful?)

Of course, the Republicans don't have 67 votes in favor of doing away with thee filibuster. My understanding of the current plan is that they are going to "rule" that the rules, as currently constituted, do not allow filibusters on judicial nominations, which is false.

But Michael Moore is fat!

Carp -- I actually thought of using that very phrase as the title of this post, but it was only a momentary temptation.

Hahaha… I've just seen several conservatives claiming that exact thing. That because Carter invited Moore to sit near him at the last minute, it's far worse than Robertson's deep, formal connections to the RNC.

And to reduce, as I've seen on these boards today. a=not a.

"There's a difference between being wrong and being illegitimate, and it matters very much that it be preserved."

I also think that there is a parallel difference between being wrong and being un-American (and an even larger difference between being wrong and being traitorous), and that it is another important principle currently in jeopardy.

If the fabric of our nation may be said to have several components, warp as well as weft, then in addition to the rule of law I think the shared sense of national purpose and identity, the sense of solidarity as Americans, is another element that binds our nation together. It is less procedural and more emotional, but no less important for that.

(Hilzoy--I think your understanding of the Senate rules is not consistent with Mark Schmitt's discussion of what it would take for the Republicans to "go nuclear", which suggests that it would violate no current rule other than the longstanding custom of deference to the Senate parliamentarian. See:
http://markschmitt.typepad.com/decembrist/2005/04/whats_nuclear_1.html
But I'm trying to get this thread back to your topic).

Again, Tony Perkins heads up The Family Research Council, not Focus on the Family.

(Tad -- continuing your parens to indicate continuing to not be on topic: the rules require a 2/3 vote to amend. Or at least they say they do. I think my difference with Schmitt is that I suggested the majority would ignore the rule on filibusters, and he suggests that they will, instead, choose to ignore the rule I quoted above, deciding to overrule the Parliamentarian and say that an attempt to change the rules by majority vote is, in fact, in order. He's probably right. But the basic reply to Slarti is the same: the rules don't allow the Republicans to do what they're proposing to do, and so they propose to ignore the rules.)

David S: Thanks; corrected.

hilzoy:

I know, but what I don't get is the doing-away-with-the-rules bit. What'd I miss?

I know, but what I don't get is the doing-away-with-the-rules bit. What'd I miss?

As things stand a Democratic filibuster is permitted by the Senate rules and it looks as if the Republicans cannot produce the 60 votes necessary for a cloture vote. [They certainly can't muster the 66 votes necessary to amend the rules as currently constituted.] The threat -- which I believe is what the Republicans called "the nuclear option" but I must admit I wasn't paying all that much attention to the arcana -- is therefore to illegitimately amend the rules by one of the two dodges outlined above to pretend that filibusters aren't permitted on judicial nominees.

IOW, because the Senate Republicans look like they're going to lose according to the actual Senate rules, they're going to cheat and play by different rules.

If that doesn't answer your question then I don't know what you're asking and you'll have to clarify.

I think that, in a Platonic sense, if the majority decides that Democratic members don't get to vote, they can so decide. All questions are decided by rules or votes, except that normally metaquestions get decided by the Parlimentarian based on the rules, precedent, fairness, duck entrails, whatever. Except that really all questions are decided by the President of the Senate, and he can rule for the majority on all questions if he feels like it. As long as he's a poet, Plato's happy. No, wrong universe, make that "As long as he's a philosopher".

As long as the poet is a philosopher, Plato's happy.

But seriously--are we really going to do Hilzoy's post the discourtesy of ignoring it, i.e. no arguments pro or con?

Or are we giving it the supreme tribute of finding it true and ungainsayable, beyond all dispute?

Is this the right place for an argument?

OK, time out.
Some folks seem to be claiming that all it takes is a simple majority to change the rules. This is wrong. It takes a 2/3 majority to change the rules. The parliamentarian interprets the rules. The chair may disagree with the interpretation and call for a vote. A simple majority decides whether the chair is correct or not. Thus the chair can circumvent the ruling of the parliamentarian if he can get a simple majority to agree. The rules haven't changed, the interpretation of them has changed. It can be an effective change of the rules, but if it is, then it is based on a lie. It is supposed to be a correction for an errant interpretation, not a rule change.

Everyone seems to believe the parliamentarian will decide that the rules require a 3/5ths vote to end debate on anything, including judicial nominations. This should give anyone pause in the claim that the rule is in error. The nuclear option is a way to say rules don't matter, the parliamentarian doesn't matter, the majority can do what it wants. It is true, the majority can do this, but it is a fundamentally dishonest way to circumvent the rules.

It is true, the majority can do this...

Another way to look at it is to say that the majority can't be stopped from doing this...

Jay is right.

Naturally I feel free to say this because I do think that my post is true and ungainsayable, though nothing at ObWi is beyond dispute ;)

Tad, I'm not here to discuss how great I think hilzoy is - the semi-thought "hilzoy great" went through my mind but I didn't think it worth posting, because everybody would be like, "well, duh, of course rilkefan thinks so but so what?". I'm here a) to expose myself to a wide spectrum of viewpoints and b) to hang out with interesting people. BTW, O Kitten, not getting the wide part so much.

What's "the wide part"?

Rilkefan--

Agreed. Wide spectrum of viewpoints good. Arguments good. Interesting people good.

In the interests of encouraging more open discourse, I think there should be a ban on posting ungainsayable material. (Who could argue with that?)

Strangely, I'm a little bit sympathetic to Robertson. His comparisons (civil war, KKK, etc.) were invidious, but I'll admit I'm a lot more scared of Southern Republicans than I am of Al Qaeda. Not because I think Southern Republicans are somehow more evil than (or even come close to) Al Qaeda, but because they are in a position to affect me while Al Qaeda really isn't. I haven't read his remarks, but I assume he is saying (or means) something similar.

"It takes a 2/3 majority to change the rules. The parliamentarian interprets the rules."

What's a "rule"? What's a "parliamentarian"? As long as the algorithm to decide questions is "Ask the president what the last vote indicates", the weak must submit by law, and that precedent and tradition stuff is substantial as grease-fire ashes.

rilkefan: never mind. Brain finally kicked in. (I had been playing with an html editor, so was thinking format.)

SCMT, on the one hand you're right - a group wielding strong political influence in the US can do more local and global damage than al Q (assuming the latter's not aided by luck) - but on the other hand that kind of logic leads to thinking crazy thoughts about making exceptions to our principles.

Rilkefan:

but on the other hand that kind of logic leads to thinking crazy thoughts about making exceptions to our principles.

I'm not sure what you're talking about here. I'd note that it's the exceptions (particularly Padilla) that we've made that make the S. Republicans so scary to me. But I'm not sure what exceptions you think my comment might lead to. All I want is strong federalism and for them to stop trying to d**k around with my half of the country. (Well, it's not all I want, but it's the most I think I can reasonably hope for; they aren't all going to decide to move out of the country.)

The threat -- which I believe is what the Republicans called "the nuclear option" but I must admit I wasn't paying all that much attention to the arcana -- is therefore to illegitimately amend the rules by one of the two dodges outlined above to pretend that filibusters aren't permitted on judicial nominees.

See, this is what I'm missing: what two dodges? And if the rules don't in fact permit those dodges, how can they get away with it? Conversely, if they do, why is anyone upset?

Slarti: See, this is what I'm missing: what two dodges?

Hilzoy outlined one "dodge" in a comment directed to you at May 3, 2005 01:23 AM.

I read Anarch's second "dodge" as the one outlined by Mark Schmitt in a comment by Tad Brennan directed to Hilzoy at May 3, 2005 01:45 AM.

Perhaps you could read Hilzoy's comment directed to you, and read Schmitt's post, and then you could ask informed, detailed questions to clarify your understanding, rather than questions which strongly indicate you aren't bothering to follow the thread, but merely wish to interject interruptions to the debate.

Slart:

The rules "permit" a majority to declare that Black is White (and not Black), but only because no one in their right mind would have thought they needed a rule to prohibit doing so. Rules presume a minimal level of good faith, a clear mistake with this crowd.

There is no way to read the filibuster rule, as currently written, as applying to executive but not judicial nominations, or to bills but not nominations. It's absolutely not there. Nor is there any way to read the rule as allowing a rule change to be made without 2/3ds vote to cut off debate.

What is proposed is to pretend otherwise, becase it is vitally important -- Reps say -- that we put people on the bench who will interpret laws strictly as they are written, and not pretend that things are there which anyone can see are not there.

And the key word here is pretend. None of the Reps in the Senate actually believes that the filibuster rule has been misinterpreted all these years, and that it actually, as written, does not apply to judicial nominations. (Hey, where are the originalists? Shouldn't they be coming out of the woodwork to tell us what was intended when the rule was written? I'll tell you why they are not: one only gets into intent when dealing with an ambiguous phrase. Even an originalist will yield to clear language, and that's what we have here with the cloture rules on debate generally, and on rule changes specifically).

And hilzoy, good post.

One does have to take into account, though, that to people who really think that abortion is murder, Usama's body count pales beside that of Mr. Justice Blackmun.

I'll admit I'm a lot more scared of Southern Republicans than I am of Al Qaeda.

Like they are going to force you to listen to Garth Brooks or something.

Slarti's point, as I understand it, is that anything that can be accomplished by any parlimentary maneuver is by definition legitimate. It does not matter that the mechanic being used was not designed for that purpose, or that in so doing the GOP must explicitly ignore the senate's own parlimentary advisor. If I may project (though I know Slarti hates that above all else), I think Slarti's point is that the instant breach only looks so bad to us on the left because (a) it is happening right now in the present moment, and (b) it is our ox getting gored, but if we were honest with ourselves, the history of tortured parlimentary maneuvers to achieve specific political goals is long and is as much a part of the Senate's history as the filibuster itself. Why Slarti (and so many other conservatives in this board) insist on hinting at their arguments with smugly oblique questions rather than stating them directly is beyond me, because this is actually a pretty good argument.

My objection isn't that this maneuvering is somehow immoral, 'cause it's not. My problem is that given the small minority of judges that the Dems have hung up, it's simply unjustified, and as FRC's little hatefest showed, this sabre-rattling by the Senate GOP is much more about demonizing the Democrats as anti-faith than about any unique contribution this handful of judges may bring. And that's ugly and subject to legitimate criticism.

And as for the actual topic of the post - are you f**king kidding me? Activist judges are more dangerous than al Quaeda? AAAAAAAGH! Shut up, Robertson! The world you seek is hell and you are the devil!

Clearly it requires an activist vice president to free us from the tyranny of activist judges.

That's my understanding of Slarti's point as well, st. But what I don't understand is why the same reasoning doesn't imply that any ruling by a judge -- no matter how much it ignores the plain text of a law -- is also by definition legitimate and beyond criticism.

Pat Robertson is all about Pat Robertson. The 700 Club originates from a "send Pat Robertson $700 theme"

On the other hand, Jerry Falwell who unfortunately gets confused and used by Robertson, is committed to larger purposes. He did establish Liberty University, and he did not call it something like "Oral Roberts University" or "Bob Jones University". Some of the differences may be too subtle for liberals to see. (and that is not a dig at you, I really am trying to demonstrate how some religious types are mainly self-serving and others are not so much).

I'd be more inclined to believe that Falwell's "larger purposes" were Christian if he didn't accept funding from Sun Myung Moon, a self-proclaimed Messiah who somehow gets a pass from all the "Christian" right.

I forgot to mention Maharishi University in Iowa, wher you can learn to fly, although not in the FAA sort of way.

The world you seek is hell and you are the devil!

Hmm, reminds me somewhat of "America is the Great Satan"

Exactly, Charley. That's why (and I alluded to this in another thread), when I'm talking with people who say they are "pro-life," I tell them that I assume that there can be no other issue for them, really, in voting, than abortion. I tell them that I assume they would do just about anything to make sure the laws of this country are changed to ban all abortions, including the morning-after pill, IUDs, etc.

Because, if they believe that children are being murdered at the rate they say (again, picturing even a just-fertilized egg as a fully-formed person), then nothing a Pat Robertson, or anyone else, can say is too extreme.

I want every "pro-life" politician to articulate this level of passion. Why should such folks sound rational? They should sound like Pat. A true "pro-life" politician should be focusing almost exclusively on changing abortion law in this country -- how else could one live with oneself?

Until this happens, we're not going to find out how this country really feels about a woman's right to choose.

(Hopefully, everyone can read the "tone" of this post. Obviously there are people who feel that there are some abortions -- late term, no medical need -- that should be banned, while maintaining a woman's right to choose earlier in a pregnancy. But -- as many here have noted -- politicians and others involved in the debate are unwilling to identify themselves as holding such positions, even if in their heart-of-hearts, they do.)

Some of the differences may be too subtle for liberals to see. (and that is not a dig at you, I really am trying to demonstrate how some religious types are mainly self-serving and others are not so much).

because, of course, no liberal could ever be religious or understand those who are.

because, of course, no liberal could ever be religious or understand those who are

Why should such folks sound rational?

My recommendation is that y'all go get a fishing license, and ask the feller at the bait shop whether
wax worms or red wigglers are getting the most bites. Then maybe over a YooHoo and Moon Pie you could discuss things cordially. I am being honest to goodness serious here. You need to get in touch with your fellow citizens.

Like they are going to force you to listen to Garth Brooks or something.

Garth Brooks is bad enough, but it's the something that really worries me.

If the fabric of our nation may be said to have several components, warp as well as weft, then in addition to the rule of law I think the shared sense of national purpose and identity, the sense of solidarity as Americans, is another element that binds our nation together. It is less procedural and more emotional, but no less important for that.

What solidarity? If there is a buck to be made, we'll sell out half the country without a second thought. (see NAFTA, WTO, CAFTA, trade deficits, use of illegal alliens, Enron, etc...)

"But no responsible person would ever try to put its resilience to the test; and those of us who care about our country should, I think, try to fight the view that it's open season on judges, that the courts are corrupt or illegitimate, and that they threaten our country; and we should do this even as we continue to criticize any decisions that seem to us to have been decided wrongly. There's a difference between being wrong and being illegitimate, and it matters very much that it be preserved."

This is exactly right. Thanks hilzoy.

Unfortunately, it will not stop here, for many reasons:

1. it works for them, in the sense that their views are becoming widely aired and they are getting more people to become members of their cause.

2. they belive they are obeying a higher law, and need not be bound by worldly considerations. This is unfortunately likely to continue until the Boomers of all political stripes leave the political stage in 20 to 30 years, as this seems to be their modus operandi, and has been since the late '60's.

3. they are not being chastised strongly enough for these statements by people on their side of the fence. If so few Republicans are willing to break rank on the nuclear option, they conclude they must be right.

DaveC,

"My recommendation is that y'all go get a fishing license, and ask the feller at the bait shop whether
wax worms or red wigglers are getting the most bites. Then maybe over a YooHoo and Moon Pie you could discuss things cordially. I am being honest to goodness serious here. You need to get in touch with your fellow citizens."

Funny, I thought I was a citizen too. Thanks for teaching me otherwise.

I am being honest to goodness serious here. You need to get in touch with your fellow citizens

physician, heal thyself.

Hilzoy outlined one "dodge" in a comment directed to you at May 3, 2005 01:23 AM.

That's not, as far as I can see, a dodge. Either it's consistent with the rules, or not. Pick one.

I read Anarch's second "dodge" as the one outlined by Mark Schmitt in a comment by Tad Brennan directed to Hilzoy at May 3, 2005 01:45 AM.

Interesting. The way I see it, either what you describe as "cheating" is consistent with the rules (in which case it's not cheating) or it's against the rules (in which case, not allowed). Are you proposing a gray area?

Perhaps you could read Hilzoy's comment directed to you, and read Schmitt's post, and then you could ask informed, detailed questions to clarify your understanding, rather than questions which strongly indicate you aren't bothering to follow the thread, but merely wish to interject interruptions to the debate.

Oh, but I did; I simply didn't see anything that appeared to fit the description of "dodge". Perhaps you can put away the nearly incessant snideness and either answer the question or vacate yourself from this part of the discussion.

their views are becoming widely aired and they are getting more people to become members of their cause.

Thanks to teh intarnets and talk radio!

Funny, I thought I was a citizen too

That's why I'm right here for ya. I'd go with the wax worms. Put the bobber up about 2 1/2 feet and don't use a sinker.

"their views are becoming widely aired and they are getting more people to become members of their cause.

Thanks to teh intarnets and talk radio!"

No, it was already there. Now it's on the national news and the local newspapers, and thereby reaching a wider audience.

Rules presume a minimal level of good faith, a clear mistake with this crowd.

A mistake with any group of politicians, I'd say. The rest of your comments I agree heartily with (will wonders never cease?) and...well, I'm left wondering how this can stand.

And thanks for the explanation.

Slarti: really, the basic point is that while the rules are completely clear about the fact that it needs a 2/3 majority to amend the rules, and 3/5 to cut off cloture, the majority can in fact say whatever it likes about the rules, and get their way. What the Senate Republicans propose to do is not within the rules. (Ymmv; the link is in my first comment.)

The two dodges are: (1) pretend that it's OK to cut off debate with a majority vote; (2) pretend that it's OK to change the rules with a majority vote. The rules say otherwise.

And Jes: cool it.

I think Slarti's point is that the instant breach only looks so bad to us on the left because (a) it is happening right now in the present moment, and (b) it is our ox getting gored, but if we were honest with ourselves, the history of tortured parlimentary maneuvers to achieve specific political goals is long and is as much a part of the Senate's history as the filibuster itself.

Not entirely inaccurate, but it really ought to be obvious now that I didn't understand that we Republicans can actually get away with this. I still don't see that we can. Still, not a half-bad strawman idea.

Why Slarti (and so many other conservatives in this board) insist on hinting at their arguments with smugly oblique questions rather than stating them directly is beyond me, because this is actually a pretty good argument.

And now the strawman receives a good whacking. I hope I don't have to point out that you're whacking at straw, do I? Still, good hit.

Shut up, Robertson! The world you seek is hell and you are the devil!

No, Robertson is a prototypical Idiotarian.

"The way I see it, either what you describe as "cheating" is consistent with the rules (in which case it's not cheating) or it's against the rules (in which case, not allowed)."

And what if (to extend the analogy) it is against the rules, but one side says we don't care what the rules say, we're going to do this anyway? Last time I checked, Congress doesn't have a referee to eject players or send them to the penalty box.

Let's not forget that these comments came from Pat Robertson, a Yale Law School graduate. His comments were not merely clueless, they were intentional comments by someone who knows the system very well. They are comments by an enemy of our current constitutional system.

As for the idea that the Vice-President gets to change the rules by fiat, that is true, only in the sense that force can be used to destroy any government, but the Vice-President doesn't have the right to change the rules, even if the majority is willing to vote with him. An attempt to destroy Senate rules like this is truly an impeachable offense.

The two dodges are: (1) pretend that it's OK to cut off debate with a majority vote; (2) pretend that it's OK to change the rules with a majority vote. The rules say otherwise.

I'm going to be eyebrows-up, permanently, if resorting to pretend rules actually works. Let's hope I don't need to do the Botox thing.

truly an impeachable offense.

Asking the Senate to actually vote on something is an impeachable offense? News to me.

Slarti: it all depends on how you define "works". If "works" means: the Republicans in the Senate pretend, and the Janice Rogers Brown get confirmed by a simple majority, then I think there's a good, though not certain, chance that you're going to have to get out the Botox.

"It often happens that all that stands between us and some outcome we think is extremely important is either that annoying Constitution, those exasperating Courts, or the incomprehensible inability of our elected representatives or our fellow citizens to see the obvious rightness of our point of view."

The problem is that the exasperating Courts have not been particularly attentive to the annoying Constitution. Or rather they have been attentive to a Constitution which is their servant rather than being its servants.

Slart, I'm not sure where you're coming from -- are you saying that the maneuver that the Republican Senate leadership is planning is not going to "work", or that the very fact that they can do it means that it follows the rules (which is to say that the only "real" rule is the majority rule)?

And in a long term sense, I think the repeated habit of making the Constitution a slave to the will of a few judges is extremely dangerous to the rule of law because it sets up a situation where legislators are less and less able to craft the long-term compromises on important social issues which allow the republic to endure.

I don't know about "impeachable", but "ill-advised" and "doomed to some sort of failure or other" seem to do rather well.

DaveC, imagine if the shoe were on the other foot. There's rules, and the rules apply to everyone. Throw the rules by the wayside when it's convenient, and the whole house of cards comes down. Then you've got to impose Senate rules externally and enforce them externally, which...can you see how that might be messy?

I don't buy yet that this attempt (or threat of an attempt) will be successful, and I think that if the GOP manages to enroll enough of its rank and file to get behind this, we're going to have a Democrat majority for some time to come. Because I'm jumping ship.

...we're going to have a Democrat majority for some time to come. Because I'm jumping ship.

As Slarti goes, so goes the nation...

I'm stuck on the Brooks comment about how liberals respond to moral arguments with legalisms, thereby appearing to be immoral or amoral. I think he is right, although not in the way he meant to be right. liberals are, in my opinion, consistantly more moral in the field of politics than conservatives but liberals also consistantly fail to communicate moral values. It is very, very important that liberal politicians and pundits start responding to moral arguments with moral counterarguments because that is the best way to be persuasive and to be understood. The legal arguments can be made after the moral ones. For example: abortion. Anti-abortion people often portray themselves as more moral because they are supposedly against killing babies. The best way to counter them is to point out that they are actually willing to kill babies in some circumstances and are not the moral absolutists they claim to be. Then start discussing the moral implications of various sets of circumstances. It is a de facto concession of morality to counter moral arguments with legalisms.

Exactly.

I apologize: I didn't realize that Slarti genuinely didn't understand Hilzoy's explanation of one dodge, and really was asking for clarification about the other.

Having read the thread through to the comment Slarti made I responded to, it seemed absolutely clear to me what the "two dodges" were that Anarch was referring to, and I assumed Slarti simply did not wish to acknowledge that such arrant rulebending by the Republican party constituted a "dodge".

Since Slarti has admirably so acknowledged in his comment at May 3, 2005 10:25 AM that it does I was wrong, and I eat crow. That is, if you can find me a tofu crow.

Slarti -
If you make us guess at your positions, then some of our guesses will be wrong. That does not make them strawman arguments (dishonest attempts to attack conveniently weak arguments rather than actual positions). Nor is my observation about the pseudo-Socratic argument style a strawman, as it is an observation, not a response to anything that could be called an argument. You may disagree with the observation, but the observation itself is not a strawman argument, because it is not an argument at all.

That said, what led you to believe that the GOP sens. couldn't get away with it? Of course they can, they're in the majority. Who will stop them? The question is, of course, whether or not this change is wise or justified. I submit that it is not. Part of hilzoy's main point, as I took it, was that our institutions have been preserved, in large part, by the honoring of unspoken proprieties, the consistent refusal of American leaders, in the executive and the legislature, to take and use the utmost limits of the potential power of their positions. This forbearance arises from a recognition that to use every dram of technical power distorts the system, sends it out of balance.

I don't have to point out that you're whacking at straw, do I
You will of course note that I was not "whacking at" anything in my previous post - in fact I was largely agreeing with what I believed your position to be. I wonder if you would have reacted so negatively had I kept the secondary (and non-essential) observation about rhetorical style to myself. Perhaps - I will have to think about that in the future.

Slart:

I'll try this once, to see if I can get you to see and admit the impropriety. The nuclear option will follow roughly the following steps (not exactly, but the sloppiness doesn't affect the important part of the argument).

(1) Republicans call for a vote on whether to change the Senate Rules, eliminating the filibuster for judges.

(2) They get more than 50, but less than 66 votes.

(3) The Senate parlimentarian rules that, as the current rules of the Senate say that a 2/3 majority is required for rule changes, the rule change fails.

(4) The chair will assert that the parlimentarian has misinterpreted the Senate Rules, and that only a simple majority is, now, under those rules as they currently exist, needed to change the rules. He will be lying. It is unquestioned that the rules do now require a 2/3 majority for changes -- in making the assertion that a simple majority is now and has always been sufficient to change the rules, the chair will have to say something that he knows is flatly false.

(5) He will call for a vote. The Senate Rules allow, in the case of a disagreement between the chair and the parlimentarian, for a simple majority to determine who is interpreting the rules correctly. The purpose of this rule is to resolve good-faith disagreements. This is not a good-faith disagreement as to what the rules now say -- the chair has created a disagreement by lying about his understanding of the rule.

(6) The Republicans in the Senate will vote that the parlimentarian has misinterpreted the rule, and that the chair's interpretation of the rule is correct. The purpose of allowing the Senate to resolve disagreements between the parlimentarian and the chair is not to allow the Senators to decide what they would like the rules to be by a simple majority, it is to gather their collective understanding of what the rules now are. Each Republican who votes that the rule is currently that Senate Rules may be modified with a simple, rather than a 2/3, majority will, therefore, likewise be lying. They will all be claiming to hold a belief about the nature of the rules that they do not in fact hold.

The bad faith comes in at steps 4, 5, and 6. Slart: Can you take issue with my description of the process of the nuclear option as requiring each Senator who supports it to lie about their current understanding of the rules? Do you approve of their evading the rules through making false claims in bad faith?

Slart:

Whoops -- crosspost. I guess, per your comment at 10:25, you do see the bad faith inherent in the process.

See, this is what I'm missing: what two dodges? And if the rules don't in fact permit those dodges, how can they get away with it?

There is no mechanism for policing the decision by a majority in the Senate to "ignore" the Senate's own rules (which is basically what the nuclear option does, as already outlined in grt detail above). The court's only role would be to enforce Constitutional limits on Senate power or procedure (i.e., the majority could not decide to pass a treaty by less than a 2/3 vote), and the rules in question do not rise to that level.

Not only bad faith, but unworkability. First, I'd sincerely hope that this approach fails to get 60% support. Second, if the Senate can overrule its own "judiciary" when it suits...kinda-sorta suggests that the Senate cannot be trusted with self-governance, which...cleanup on aisle 5.

Jesurgislac:

No crow-eating required. I know that both of us have done our share of pouncing, just wanted you to know that it wasn't, in this instance, warranted. Thanks for wrapping it up civilly.

st:

You will of course note that I was not "whacking at" anything in my previous post

Ok, I'll accept that hinting at their arguments with smugly oblique questions may have some meaning other than suggesting that I was doing so, but I honestly can't see it. Care to elaborate?

Heh. I can see we're going to have to let people work their way downthread. I blame myself.

First, I'd sincerely hope that this approach fails to get 60% support.

That's the point -- they don't need 66%, or 60%. If they're willing to lie about the rules, all they need is a simple majority.

"First, I'd sincerely hope that this approach fails to get 60% support."

The Senate Republicans are aiming at 50% support (plus Cheney to break the tie), not 60%. So far only 3 or 4 Republicans have spoken against it (my memory is McCain, Snowe, Hagel and perhaps Collins), so they are still reaching 50%.

Oh, I don't deny I was taking a shot at your argument style, an unjustified shot, as it turns out. But just because I was wrong does not mean I was "whacking at" a strawman. Not every incorrect observation is a strawman argument. As I understand the definition of a "strawman argument", there is a degree of intentionality required - I must be intentionally attacking a BS construct in order to avoid grappling with your essential argument, rather than simply making an observation, and I don't think I was doing that.

Gahh, this is all too technical. Like I said above, strawman or not, I should have just kept my sarcastic little aside about rhetorical tactics to myself. As I understand your point now, I completely agree with it, so I think I will just quit while I'm...uh...well, I'll just quit.

I think the repeated habit of making the Constitution a slave to the will of a few judges is extremely dangerous to the rule of law

Which means that you join DeLay and crew in thinking that there is something wrong with Marbury v. Madison, which makes the Constitution the slave of any five members of the Supreme Court. For some reason, 200 years of Constitutional legal scholarship disagrees with you.

The "rule of law" is what judges interpret the law to be -- you cannot separate the concept from the function of judging.

The core protection (other than impeachment) so that judicial behavior respects the rule of law is the temperment of the judges that you appoint. Which is why it is wrong to appoint radical activists such as the Bush nominees to "fix" the law. Those nominees epitomize the evil of which you complain.

There's also something very weird about categorical opposition to 'judicial activism' in a common-law system. Under our system of law, a very large portion of the law is what judges say it is -- the decisions of judges are, and are supposed to be, a source of law. A judge who creates new law in a decision is often doing nothing more than their job, as minimally defined by anyone who understands what American judges are supposed to do.

Now, judges are bound by statute, and by state constitutions where applicable, and the Federal Constitution always, but that doesn't change the fact that it is their job within those restrictions to create the law. A categorical opposition to judge-made law is incoherent in our system -- what can be rationally objected to is particular decisions that one may regard as incorrect, not the concept of 'judicial activism' in general.

Since Slarti has admirably so acknowledged in his comment at May 3, 2005 10:25 AM that it does I was wrong, and I eat crow. That is, if you can find me a tofu crow.

In the spirit of tofurkey, I give unto you: crowfu. Enjoy!

There's also something very weird about categorical opposition to 'judicial activism' in a common-law system.

true. but we shouldn't assume that Joe Dittohead knows it's wierd. he certainly knows there's something going on that has upset Bush, DeLay, Rush, Dobson and the rest of the professional right; and he's heard all their talking points, and can probably parrot them. but, we shouldn't assume the people who crafted these talking points actually believe that "judicial activism" itself a problem as much as they simply want a way to enflame The Base during the next batch of federal judiciary (including SCOTUS) appointments.

DaveC asked: Asking the Senate to actually vote on something is an impeachable offense? News to me.

Yes, yes, distraction is so much easier than admitting that the Vice-President has stated that he is willing to overrule the Parliamentarian in order to change the rules of the Senate. As you know, but ignore, it takes a two-thirds vote of the Senate to change the rules, but the Vice-President has said that he is willing to change the rules all by himself if he can get 50 ethically impaired Republicans to go along with it.

The Senate has rules. Some Republicans don't like the idea that those rules keep judicial nominees from being confirmed, but they never complained when they were the ones using Senate rules to keep judicial nominees from being confirmed. Just like Leona Helmsley, rules only apply to others, never to themselves.

Anarch, I already tried without success to have Jes change her menu.

Worth noting tangentially: One of the four cornerstones of The Liberal Media, The Washington Post, somehow failed to note the rather novel opinions of Tony Perkins in its Sunday magazine puff piece.

Damn you, rilkefan! Daaaaaaaaamn you!

Damn him, indeed. Looks like a decent claim to first use, at least in blogspace.

Google likes ObWi.

I'm really glad this discussion is going on here. Why isn't it going on on a wider scale, though? Public understanding of the basic mechanisms of the nuclear option seems to be sorely lacking. If more people understood that what we are talking about here is a willful misinterpretation of the standing Senate rules whose only legitimacy derives from force of numbers (making it just as legitimate as a gang of ruffians stealing your wallet in a dark alley with no police around -- hey, majority rules, right?), I think there would be more public outcry against this move. But, unlike Slartibartfast, I sincerely doubt enough of the public will ever understand what an act of bad faith the nuclear option is to cause any sort of backlash. The Republican leadership is working too hard at spinning this move as actually having some sort of legitimacy; see "Constitutional Option" and the "all we want is an up or down vote" talking point (and all the gang of ruffians wanted was to buy some new sneakers -- what's wrong with buying sneakers, huh?).

Inexplicably, the Democrats seem to be exclusively arguing the merits of the filibuster. Why not educate the public in broad terms on the Big Lie that is the nuclear option? Are attention spans simply too short? I can see how talking at length about rules and procedures might be too geeky, but there are plenty of simple and accurate metaphors that can be employed to get the point across, right?

And now that I've complained about the lack of public understanding, I have to confess that I'm confused: I have gotten the distinct impression up until now that the nuclear option consisted of the chair ruling that debate is out of order, thereby overriding judicial filibuster by precedent, not by a rule change. But above it is argued that the chair will rule not on the cloture rule, but on the amendment rule. Which is it?

If you're addressing my 10:40, I was writing hastily and sloppily, but my understanding is the same as yours -- the cloture rule is the one that's up for change.

"Which means that you join DeLay and crew in thinking that there is something wrong with Marbury v. Madison, which makes the Constitution the slave of any five members of the Supreme Court. For some reason, 200 years of Constitutional legal scholarship disagrees with you."

Nope, when judges stick to the Constitution I have no trouble with them overruling legislatures.

"Now, judges are bound by statute, and by state constitutions where applicable, and the Federal Constitution always, but that doesn't change the fact that it is their job within those restrictions to create the law. A categorical opposition to judge-made law is incoherent in our system -- what can be rationally objected to is particular decisions that one may regard as incorrect, not the concept of 'judicial activism' in general."

This is a category mistake. I can easily argue against judge-made law. You are arguing for judicial enforcement of existing laws and the existing Constitution. I'm not arguing against that. I'm arguing against judicial activists who inappropriately read their own political judgments into the Constitution--and such judges are the norm on both sides. Judicial restraint is not considered the strong (if not strongest) virtue in a judge that it used to be. This is not to say that all past judges lived up to the idea of judicial restraint and deference to the document, but rather that it was one of the most important values, and now it is not.

"There's rules, and the rules apply to everyone. Throw the rules by the wayside when it's convenient, and the whole house of cards comes down."

I agree with this statement both as it applies to the filibuster (though Byrd did not agree when he last changed the rules) and when it applies to jurisprudence. My problem with the whole judicial debate over the past 50 years is that it has been about throwing the rules of jurisprudence by the wayside when it's convenient. And the biggest problem is that it is becoming more and more convenient.

I can easily argue against judge-made law.

can you point me to an actual law that a judge has written ?

Sebastian, can you give some examples of decisions you find objectionably activist (beyond Roe and Roper)?

I'm arguing against judicial activists who inappropriately read their own political judgments into the Constitution--and such judges are the norm on both sides.

The problem is that all the work in that sentence is being done by "inappropriately". Which means you could have just written, "I'm for good things and against bad things."

I can easily argue against judge-made law.

You're not following me, excusably, becasue I wasn't all that clear.

You can't argue against judge-made law in general because our legal system depends upon it. In most areas of law, statutes and constitutions are not adequate to unambiguously determine, or in many cases to determine at all, how a given controversy should be decided. In those cases, judges, relying on the prior decisions of other judges in similar or analogous cases, make law. They aren't doing anything wrong, or unusual, they are functioning precisely as they are supposed to in a legal system that largely relies on the common law. If judges did not make law, they would be unable to decide a large part of the cases that come before them.

I'm arguing against judicial activists who inappropriately read their own political judgments into the Constitution--and such judges are the norm on both sides.

You're arguing against judges who make what you regard as wrong decisions for political reasons. That's fine -- nothing incoherent about it -- but 'judicial activism' is a bad name for it. There's no alternative that allows judges to refrain from making law, no way for a judge to not be active. There are only good decisions, well supported by precedent, statute, and constitutions, and bad ones. Bad judges aren't bad because they're activist, they're bad because their decisions are wrong.

LB:

You're arguing against judges who make what you regard as wrong decisions for political reasons.

Recasting the sentence a couple of ways clarifies for me what I think is going on with SH.

1. SH is saying: "I'm against judges who make wrong decisions where those decisions are wrong because they import political reasons into the decision-making process." This strikes me as a bad argument, where made broadly, because it is impossible not to import those political reasons into the decision-making process. This was less clear in the past because the arbiters of culture (that is the deciders) were a more homogeneous group - if there was less disagreement, that's because there was less disagreement.

2. I suspect SH actually means: "I'm against judges who make decisions I disagree with politically; that is, wrong decisions." Reasonable, but not an argument I find compelling unless I agree with his political reasons.

"Political" meant broadly here, not simply Dem/Pub.

This strikes me as a bad argument, where made broadly, because it is impossible not to import those political reasons into the decision-making process.

This, very much so -- where a judge needs to make new law because the current law doesn't address the controversy before them, there are no better reasons for them to rely on than considerations of justice and good public policy, which are very much political reasons. Now, a decision that is politically (socially, as a matter of policy) desireable in the eyes of the judge may be contrary to statute or to a constitution, and at that point a judge who makes such a decision is making bad law, even if they're making good policy. (Some of this does go on, of course, but not all that much and not in any consistent political direction.)

Now, a decision that is politically (socially, as a matter of policy) desirable in the eyes of the judge may be contrary to statute or to a constitution, and at that point a judge who makes such a decision is making bad law, even if they're making good policy.

I think we might disagree about the blurriness of these edges. "Contrary to statute or to a constitution," to me, really means "contrary to the standard model of what that statute or constitution could reasonably be believed to mean." Which in turn means, "there's a consensus about what this means." So, in controversial areas, there's a fair bit of leeway for d*cking around. But I'm sure controversial areas are, IRL, relatively infrequent.

The comments to this entry are closed.

Blog powered by Typepad