« Slacktivist Has A Plan! | Main | The Instant Re-Politicization of Sex »

February 16, 2005

Comments

I think it was the federal laws against child labor and what not that were struck down, and then on commerce clause grounds not freedom to contract (IIRC). I don't think there was any impediment to states passing similar laws (but maybe that's the "freedom to contract" piece).

Ugh,

That's not correct. Many state laws were struck down precisely because they impinged on a person's freedom to contract. Most often cited is Lochner v. New York, a 1905? case where New York's law limiting bakers to a 60 hour work week was struck down as preventing bakers who wanted to work greater numbers of hours from doing so.

I don't quite understand why some conservatives think we can return to the structures of the 1950s or 1920s or 1880s, regain many of the advantages of those structures while managing to avoid all the pitfalls. I suppose my own conservatism concludes that the invariant aspects of human nature trump the mutability of human culture. For example, our changed attitudes toward race in America may have decreased the need for the civil rights laws. But optimism that "culture will restrain nature" without the need for empirical analysis is a dangerous political philosophy.

OTOH, the Enlightenment is an experiment the success of which it is too early to judge. On balance, so far, I think reason and science have demonstrated some marginal utility.

"Conservatives are actually more libertarian toward social and cultural issues than the strongly Catholic Buchanan and Wood." ...Charles in a thread below.

Well. To me, "conservatism" has to have sympathy for invariant values so that communication with Cicero,
Thomas More, and Samuel Johnson remains possible. But hey, it's your party.

Bob M: Not according to Brown: "To the extent the Enlightenment sought to substitute the paradigm of reason for faith, custom or tradition, it failed to provide rational explanation of the significance of human life. It thus led, in a sort of ultimate irony, to the repudiation of reason and to a full-fledged flight from truth — what Revel describes as "an almost pathological indifference to the truth." "

Side note: one of the things that I've always found odd when reading comments on conservative blogs is the number of people -- not huge, but a lot more than the one or two I would expect -- who say that liberals reject the Enlightenment. This comes as news to me, and would also come as news to, say, all the students who've taken courses in Enlightenment Moral and Political Theory from me. I don't understand (a) why they say this is the first place, and (b) how this statement gets reconciled with the wing of conservatism that blames the Enlightenment for everything. (There is a similar wing on the left, but this just makes me conclude that views of the Enlightenment tend not to sort by political ideology. Also, that some people just haven't read the actual works they're talking about.)

These nominees are truly dreadful by any reasonable standard. The disheartening thing, to put it mildly, is that they will, inevitably, receive solid support from Republicans in the Senate and from conservative "pundits."

The talking points will fly, Bush will tell us they are "good people," Democrats will be accused of "smearing them" by quoting their own words, Hatch will bloviate about obstructionism and unfairness if they are filibustered.

Forget Ward Churchill and Thomas Woods and Ann Coulter. We are talking here about nut cases who are being nominated to the federal courts. Where are the honest and decent conservatives who will oppose these nominations? Will Specter oppose them? Snowe? Collins? Chafee? If not, what claim can they make to being moderates?

"In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the "constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."19 Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong."

The Judge goes really wrong here. This passage reveals that while she is right about the next passage I'm about to quote, she is no better than those she criticizes:

In the New Deal/Great Society era, a rule that was the polar opposite of the classical era of American law reigned. A judicial subjectivity whose very purpose was to do away with objective gauges of constitutionality, with universal principles, the better to give the judicial priesthood a free hand to remake the Constitution.

She just wants to be another one of the free-hand priesthood. It is sad that it has gotten to the point where the main difference between 'conservative' and 'liberal' jurists is which lies they will propagate about jurisprudence. In fact the root '-prudence' really doesn't belong in the word anymore.

Bernard: actually, I will lay bets that what they will say is that people who oppose her nomination are racists. (She's black.) A few weeks ago, in a column I don't feel like looking up right now, Robert Novak wrote that the GOP was planning to reintroduce her nomination first, so that Democrats would be put in the position of opposing an African-American nominee, but as of now Arlen Spector seems to be urging them to start with someone less inflammatory. As far as I'm concerned, race has absolutely nothing to do with it: it's about basic competence and reasonableness.

Plus, if I were a lawyer, I'd be asking: do I really want to read opinions by someone whose prose style is so completely unclear? But hey -- IANAL, so what do I know.

Sebastian: It's a horrible thing that we all can't just agree that there's a difference between nominees we disagree with but respect and nominees who are just beyond the pale, whether liberal or conservative, and not get jumped on. But there we are.

"Familiar arrangements are coming apart; valuable things are torn from our hands, snatched away by the decompression of our fragile ark of culture."


I've been sitting here trying to figure out how best to make fun of this sentence. I also enjoyed the blow-up-birds-for-the-ornithologists'-pleasure argument.

It seems that the only good way to oppose these candidates would be to have one of our many senator-lawyers run through these arguments with a dead-pan comic delivery. This stuff should be exposed to the public and mocked.

"Plus, if I were a lawyer, I'd be asking: do I really want to read opinions by someone whose prose style is so completely unclear?"

Heh, well yes. But that would really reveal how much she fits in rather than be a particular point against her.

It's a horrible thing that we all can't just agree that there's a difference between nominees we disagree with but respect and nominees who are just beyond the pale, whether liberal or conservative, and not get jumped on. But there we are.

I should think that were it not for the way the GOP is trying to spin Democratic opposition to these nominees, it would be obvious to any thinking person that we're not being obstructionist, we simply have solid, supportable reasons for thinking these people have no place on the bench. Look at how many of Bush's nominees /passed/--more both in percentage and numbers, IIRC, than any other president for decades.

"should think that were it not for the way the GOP is trying to spin Democratic opposition to these nominees, it would be obvious to any thinking person that we're not being obstructionist, we simply have solid, supportable reasons for thinking these people have no place on the bench."

That depends upon which time frame you are talking about. The Democrats absolutely started out in 2000 and 2001 with obstructing almost every nominee. That is what makes painting their every move now as obstructionist so easy.

Cite, please?

The Democrats absolutely started out in 2000 and 2001 with obstructing almost every nominee.

I love how a) the Democrats get the blame for Bush's crappy nominees who were rejected for positions that b) were only available because the Republicans, led by Orrin Hatch, had deep-sixed hundreds of Clinton appointees. I'm not saying you're wrong that the Republicans can portray the Democrats as obstructionist, just noting that it only works because of our national retrograde amnesia.

hilzoy,

Plus, if I were a lawyer, I'd be asking: do I really want to read opinions by someone whose prose style is so completely unclear? But hey -- IANAL, so what do I know.

Me too. Note that whatever the second passage quoted by Sebastian is intended to mean, the second sentence has lost its verb.

jackmoron,

Sounds like a vague attempt at Yeats to me.

"Things fall apart; the center cannot hold;"

Pretty ironic, considering.

Sebastian

The Democrats absolutely started out in 2000 and 2001 with obstructing almost every nominee. That is what makes painting their every move now as obstructionist so easy.

I think you are seriously overstating things (2000?), but in any case why would that provide an excuse for allegedly "moderate" Republican Senators to support these particular nominees?

This may be one of the most frightening things about this President: no matter how wrong he may be, he just absolutely cannot stand to lose. There are plenty of other hard-right headcases available for appointment to the federal bench, but he has to re-nominate this bunch because he by-God isn't going to let any damn Democrat Party be telling him he can't have the headcases of his choice.

Anarch,

You mean the same Orrin Hatch who shows up every now and then telling us how outrageous it is that all nominees don't get a floor vote? Isn't Hatch, with his too tight collar and his righteous air, a man of firm principles? Surely he didn't block any Clinton nominees from getting a floor vote, did he?

Astonishing that there seems to be no one in the Republican Congressional leadership who is willing to tell the White House to grow up and move on. Unless getting rid of the filibuster (the 'nuclear option') is the entire point of this. Which I suspect it is.

These nominees were rejected because they are NOT acceptable (in some cases barely qualified), and three or four years passing has not made them any more acceptable.

Pickering.

Pickering was qualified, except he is pretty radical in his opposition to established civil rights law.

Pickering was also only 1 nominee, so he does not provide much evidence regarding "The Democrats absolutely started out in 2000 and 2001 with obstructing almost every nominee."

Is there a cite for this unusual statement?

Pickering did have that little "soft on cross-burning" problem, regardless of his other qualifications.

The Democrats absolutely started out in 2000 and 2001 with obstructing almost every nominee.

That would be 10 out of 214. Kinda like how the five in my pocket is almost $100.

"Pickering did have that little "soft on cross-burning" problem, regardless of his other qualifications."

You just parroting the Democratic line or do you know about the issue?

I'd have to look back over the articles -- as I remember it, he made a significant downward departure from the sentence mandated under the Sentencing Guidelines for a defendant convicted of participating in a racially motivated cross-burning; if I recall correctly, he also engaged in significant contact with the prosecutors in the case in an attempt to reduce the sentence.

He also co-sponsored a Mississippi Senate resolution calling on Congress to overturn section 5 of the Voting Rights Act, and he criticized the one-person-one-vote principle of voting rights law from the bench while he was a federal district judge. Circuit 5's jurisdiction encompasses states with a bad voting rights history; I don't think it's unreasonable for Democratic senators to oppose a Republican nominee for a 5th Circuit seat who has a clear record in opposition to voting rights law.

Ah, Dantheman is becoming a cite troll on this and other threads. I'm going to have my typical response about google. I'm happy to cite things which should be surprising or unknown to those following a story. I'm happy to research and cite things in my initial posts. I don't play the 'please cite' game discussions in a thread of what often exceeds 100 posts. I don't do that because I expect people who discuss here to have access to common knowlege on the topic being discussed--especially if they are going to bother being snarky. Please Google: Senate Democrat Judiciary Memo and begin your research there. If you do that you might find Democrats blocking a nomination expressly to change the outcome of a particular affirmative action case in Michigan--highly unethical. You might also find memos that Democrats were shocked to have leaked regarding obstructionist tactics in the Senate. You should also be able to find statistics on high level judges confirmed in that period (please not high-level, most Democrats who tackle this issue appeal to 'all federal appointments' and include District judges which is almost an entirely different issue).

Thanks.

I am hardly becoming a cite troll. I have seen many times the statistic that around 98% of Bush's nominees got approved. Therefore, I am asking again, where is your evidence that "The Democrats absolutely started out in 2000 and 2001 with obstructing almost every nominee."

Note, I will provide cites to things that I expect people might not have known:

The crime took place on January 9, 1994. Three men — 20-year-old Daniel Swan, 25-year-old Mickey Herbert Thomas, and a 17-year-old whose name was not released because he was a juvenile — were drinking together when one of them came up with the idea that they should construct a cross and burn it in front of a house in which a white man and his black wife lived in rural Walthall County in southern Mississippi. While it is not clear who originally suggested the plan, it is known that the 17-year-old appeared to harbor some sort of hostility toward the couple; on an earlier occasion, he had fired a gun into the house (no one was hit). Neither Swan nor Thomas was involved in the shooting incident.

The men got into Swan's pickup truck, went to his barn, and gathered wood to build an eight-foot cross. They then drove to the couple's house, put up the cross, doused it with gasoline, and set it on fire.

Because the case involved a cross burning covered under the federal hate-crimes statute, local authorities immediately brought in investigators from the Clinton Justice Department's Office of Civil Rights. After the three suspects were arrested in late February, 1994, lawyers for the civil-rights office made the major decisions in prosecuting the case.

In a move that baffled and later angered Judge Pickering, Civil Rights Division prosecutors early on decided to make a plea bargain with two of the three suspects. The first, Mickey Thomas, had an unusually low IQ, and prosecutors decided to reduce charges against him based on that fact. The second bargain was with the 17-year-old. Civil Rights Division lawyers allowed both men to plead guilty to misdemeanors in the cross-burning case (the juvenile also pleaded guilty to felony charges in the shooting incident). The Civil Rights Division recommended no jail time for both men.

The situation was different for the third defendant, Daniel Swan, who, like the others, faced charges under the hate-crime statute. Unlike the others, however, Swan pleaded not guilty. The law requires that the government prove the accused acted out of racial animus, and Swan, whose defense consisted mainly of the contention that he was drunk on the night of the cross burning, maintained that he simply did not have the racial animus necessary to be guilty of a hate crime under federal law.

The case went to trial in Pickering's courtroom. During the course of testimony, Pickering came to suspect the Civil Rights Division had made a plea bargain with the wrong defendant. No one questioned the Justice Department's decision to go easy on the low-IQ Thomas, but the 17-year-old was a different case. "It was established to the satisfaction of this court that although the juvenile was younger than the defendant Daniel Swan, that nevertheless the juvenile was the ring leader in the burning of the cross involved in this crime," Pickering wrote in a memorandum after the verdict. "It was clearly established that the juvenile had racial animus....The court expressed both to the government and to counsel for the juvenile serious reservations about not imposing time in the Bureau of Prisons for the juvenile defendant."

In addition to the 17-year-old's role as leader, there was significant evidence, including the fact that he had once fired a shot into the mixed-race couple's home, suggesting that he had a history of violent hostility to blacks that far outweighed any racial animosity felt by Daniel Swan. Swan had no criminal record, and seven witnesses testified that they were not aware of any racial animus he might have held against black people. On the other hand, one witness testified that he believed Swan did not like blacks, and Swan admitted under questioning that he had used the "N" word in the past. In the end, Swan was found guilty — there was no doubt that he had taken an active role in the cross burning — and the Justice Department recommended that he be sentenced to seven and a half years in jail.

At that point, the Justice Department had already made a no-jail deal with the 17-year-old. When it came time to sentence Swan, Pickering questioned whether it made sense that the most-guilty defendant got off with a misdemeanor and no jail time, while a less-guilty defendant would be sentenced to seven and a half years in prison. "The recommendation of the government in this instance is clearly the most egregious instance of disproportionate sentencing recommended by the government in any case pending before this court," Pickering wrote. "The defendant [Swan] clearly had less racial animosity than the juvenile."

Compounding Pickering's concern was a conflict between two federal appeals-court rulings over the applicability of a statutory mandatory minimum sentence to the case. The Justice Department insisted that Swan be sentenced to a minimum of five years under one statute and two and a half years under a separate law. Pickering doubted whether both were applicable to the case and asked Civil Rights Division lawyers whether the same sentencing standards were used in cases in other federal circuits. The prosecutors said they would check with Washington for an answer.

Pickering set a sentencing date of January 3, 1995. As the date approached, he waited for an answer from the Justice Department. He asked in November, 1994 and received no response. He asked again in December and received no response. He asked again on January 2, the day before the sentencing, and still received no response. He delayed sentencing, and on January 4 wrote a strongly-worded order to prosecutors demanding not only that they respond to his questions but that they take the issue up personally with Attorney General Janet Reno and report back within ten days.

Shortly after issuing the order, Pickering called assistant attorney general Frank Hunger, a Mississippian and friend of Pickering's who headed the Justice Department's Civil Division at the time (Hunger was also well known as the brother-in-law of vice president Al Gore). Pickering says he called Hunger to express "my frustration with the gross disparity in sentence recommended by the government, and my inability to get a response from the Justice Department in Washington." Hunger told Pickering that the case wasn't within his area of responsibility. It appears that Hunger took no action as a result of the call. (Hunger later supported Pickering's nomination to the federal appeals courts.)

Finally, Pickering got word from Civil Rights Division prosecutors, who said they had decided to drop the demand that Swan be given the five-year minimum portion of the recommended sentence. Pickering then sentenced Swan to 27 months in jail. At the sentencing hearing, Pickering told Swan, "You're going to the penitentiary because of what you did. And it's an area that we've got to stamp out; that we've got to learn to live, races among each other. And the type of conduct that you exhibited cannot and will not be tolerated....You did that which does hinder good race relations and was a despicable act....I would suggest to you that during the time you're in the prison that you do some reading on race relations and maintaining good race relations and how that can be done."

So Swan went to jail, for a bit more than two years rather than seven. Every lawyer in the case — the defense attorneys, the prosecutors, and the judge — faced the difficulty of dealing with an ugly situation and determining the appropriate punishment for a bad guy and a somewhat less-bad guy. Pickering, who believed the Civil Rights Division went too easy on the 17-year-old bad guy, worked out what he believed was the best sentence for Daniel Swan. It was a real-world solution to the kind of real-world problem that the justice system deals with every day. And it was the end of the cross-burning case until Pickering was nominated by President Bush to a place on the Fifth Circuit Court of Appeals.

cite

AND

Charles Pickering: Well, I was elected county attorney in 1963 at the age of 26. And when I began to see the violence and the hatred that comes from unrestrained racial prejudice, I saw the violence of the Klan, I had three choices. I could either do as most Mississippians did and simply remain silent. I could become a Klan sympathizer. Or I could challenge the Klan and take the Klan on. And I came to the conclusion that the right thing to do was to challenge the Klan and I did that.

Mike Wallace: In the '60s?

Charles Pickering: In the 1960s.

Mike Wallace: And how do you challenge the Klan?

Charles Pickering: I worked with the FBI to stop Klan violence.

Pickering told 60 Minutes he and the FBI exchanged information about Klan shootings and bombings. Back in 1966, after civil rights activist Vernon Damer was killed by a firebomb, and notorious Klan leader Sam Bowers was charged with the murder, Pickering, then prosecutor in a nearby county, testified that Bowers had a reputation for violence.

Bowers was described as the most vicious Klansman ever to don a white robe.

Mike Wallace: And after you testified against Bowers, you needed FBI protection?

Charles Pickering: The FBI came to see me and told me that I needed to watch when I stepped out of my office at night, that the Klan was threatening to whip me. Did have an undercover agent who was working with the Klan that used to come by my home after he had been to Klan meetings to make sure that some of the crazies, after they'd been worked into a frenzy with the burning cross and under their white sheets, that they were not there to burn our house. We were careful and tried to use older baby sitters. We tried not to leave our children with teenage baby sitters during this period of time."

In Pickering's next election (for the state legislature), the Klan took credit for defeating him. It took four decades to finally convict Bowers, who's now serving life in prison for murder.

Back in the '70s, when public schools were forced to integrate, many white parents took their children out of the public schools and put them in private schools for whites only. But not the Pickerings.

"We sent our children to the integrated schools, even though there was a good private school less than a block from our home," says Pickering. "We supported integrated public education. And did so with our children. We have a picture of our middle daughter. She's in with her class, which is predominantly black."

And there's more:

"When I was chairman of the Mississippi Republican party in 1976, I sought invitations and accepted invitations to speak to the state NAACP, that I do not think we need to be polarized along race," Pickering continues. "In 1981, I accepted employment in a case to defend a young black man who was charged with robbing a young white girl at knifepoint. And it was not a popular case for me to take on. But I thought he was innocent and that he needed a defense. I didn't think he would have gotten a good attorney otherwise. He was acquitted."

Nonetheless, Senate Democrats who questioned Pickering in committee portrayed him as soft on cross burners, after they learned he'd gone to great lengths to cut back the sentence of a young white man convicted of cross burning.

Sen. Charles Schumer of New York was especially critical: "The bottom line is if Judge Pickering were so sensitive to the long and sad racial history in Mississippi, he would never have done what he did with the case of cross burning."

...

"Pickering has got a very strong record on civil rights. Just ask the people he lives with."

60 Minutes did, and found that in Mississippi, Pickering enjoys strong support from the many blacks who know him. In his hometown of Laurel, four of the five black City Council members say they back him, because of all he's done to improve race relations. And many black attorneys who practice before him say Pickering is fair and first-rate. They include attorney Charles Lawrence, who says, "I trust him because I've been in front of him. I've had cases in front of him. And that's not to say I've always won. I haven't always won. But he, he has an understanding of the law and he applies it he applies it fairly across the board.

Deborah Gambrell, another black attorney, and another Democrat, thinks Pickering got a raw deal from those Democrats in Washington.

"This man makes for a level playing field," she says of Pickering, "and that's the thing that I admire about him."

What was her reaction when Democratic senators labeled Pickering "insensitive on racial issues"?

Her reply: "As an attorney who's appeared before him year after year representing - and I have represented the NAACP on a matter before him and representing other clients - I was shocked and appalled. Judge Pickering is not fair? Judge Pickering is insensitive? I was shocked."

Several past presidents of the NAACP in Mississippi support Pickering. But today's NAACP leaders do not. Some feel the seat should go to a black judge. The national NAACP issued a statement, calling Pickering hostile to its priorities, and all its branches in Mississippi oppose the judge.

But when Clarence McGee, who heads the NAACP in Hattiesburg, sat down for 60 Minutes with a Pickering supporter, Charles Evers, brother of murdered civil rights leader Medgar Evers, the NAACP president got an earful:

Charles Evers: You know, maybe you don't know, you know that Charles Pickering is a man helped us to break the Ku Klux Klan. Did you know that?

Clarence McGee: I heard that statement made.

Charles Evers: I mean, I know that. Do you know that?

Clarence McGee: I don't know that.

Charles Evers: I know that. Do you know about the young black man that was accused of robbing the young white woman. You know about that?

Clarence McGee: Nope.

Charles Evers: So Charles Pickering took the case. Came to trial and won the case and the young man became free.

Clarence McGee: I don't know about that.

Charles Evers: But did you also know that Charles Pickering is the man who helped integrate his churches. You know about that?

Clarence McGee: No.

Charles Evers: Well, you don't know a thing about Charles Pickering.

Then McGee brought up the cross burning case and the strong pressure Pickering put on prosecutors to cut back Daniel Swan's sentence. Says McGee, "I would say he overstepped his bounds. He might be somewhat intimidating. These kinds of things disturb me."

But Pickering remains proud of his record, and of his state, for working to heal historic racial wounds.

Says Pickering, "Mississippi's made tremendous progress. And I feel like I've been a part of that progress. And I'm glad to have been a part of that progress. And I think it's extremely unfortunate any time anyone, black or white, uses race to divide us and polarize us."

Cite

Dan, the statistics you have seen include District Court judges, who rarely make the kind of decisions that people worry about/hope for.

Sebastian,

Even if you are right about the statistics I've seen, unless the number of district judges nominated outnumbered the number of appelate judges nominated by 24 to 1 and the Democrats did not oppose any district judges, the Democrats still did not obstruct the majority of appelate nominees. That's why you need to provide some proof for your statement.

"[T]he statistics you have seen include District Court judges, who rarely make the kind of decisions that people worry about/hope for."

Right, and a circuit court seat is a much more powerful, influential, and political posting. Making his troubling (to some) record on voting rights issues fair game for inquiry in the nomination process. His 5th Circuit nomination was opposed by the MS state chapter and all local chapters of the NAACP, largely because he is in favor of dismantling the federal voting rights structure and leaving voting rights enforcement up to the states.

But your point is that he was railroaded on the basis of the cross-burning case, in which he was unfairly maligned and misunderstood. Even if that is the case, there are still principled grounds on which to oppose the Pickering nomination, without being an irrational partisan obstructionist.

Sebastian,

And if Pickering were King Solomon reincarnate, how would that justify the appointment of Brown and Haynes?

In a move that baffled and later angered Judge Pickering, Civil Rights Division prosecutors early on decided to make a plea bargain with two of the three suspects. The first, Mickey Thomas, had an unusually low IQ, and prosecutors decided to reduce charges against him based on that fact. The second bargain was with the 17-year-old. Civil Rights Division lawyers allowed both men to plead guilty to misdemeanors in the cross-burning case (the juvenile also pleaded guilty to felony charges in the shooting incident). The Civil Rights Division recommended no jail time for both men.

So he was outraged that the one cross-burner, an adult of normal intelligence who didn't plead guilty, got a heavier sentence than a minor and a mentally slow individual both of who pleaded guilty? If this excites his sense of injustice, he must have had a hell of a time in any criminal context.

Who was justifying Brown or Haynes? I'm suggesting that by playing a pure obstruction game for the past four years, Democrats can't obstruct these two any more than they do completely qualified judges. They unfairly played the race card against Pickering and are about to have the race card played against them. They have no further weapons available. So now if Bush rams these two down their throats they will have lost everything. Pure power politics on both sides, and we will all suffer for it.

Of course if he's going to get exercised over the injustice of prosecutorial overreaching in charging and plea agreements then it's probably better for the poor man's health that he's no longer a federal trial court judge.

"I'm suggesting that by playing a pure obstruction game for the past four years"

Again, where is your evidence that the Democrats did this at all? Then we can start doing comparisons between the extent to which Democrats obstructed Bush nominees vs. Republicans obstructed Clinton nominees.

"So he was outraged that the one cross-burner, an adult of normal intelligence who didn't plead guilty, got a heavier sentence than a minor and a mentally slow individual both of who pleaded guilty?"

Oh good heavens. I know you can read, and I provided the quote. This is why I don't bother citing, because people don't bother reading. He was annoyed that the 17-year old mastermind of the crime--who had shown previous racial animus by shooting into the house in question--got no jail time while the drunken friend was slated to get 7 and a half. And the article states that everyone agreed the retarded guy got proper treatment.

cite

Percent of Bush circuit court judges confirmed: 59%, percentage of Clinton circuit court judges confirmed: 77%. You can also note that a number of judges denied a vote on the floor were passed through without opposition in Committee.

Um, you are leaving out that the blue slip rules were changed by the Republican-controlled Senate when Bush entered office, of course -- many of Clinton's proposed judges never even made it to committee because the rules allowed one home-state senator to block them. I don't believe the stats you cite include blue-slipped candidates.

On the Pickering thing -- my criminal law experience is limited to a very few pro bono cases, but I've had a client plead to six months when he would have been looking at over ten years under the Guidelines. There is simply nothing even remotely odd about that size sentencing disparity between a defendant who pleads guilty and one who goes to trial, and the fact that Pickering went to unusual (contacting the Justice Department? Unusual.) lengths to remedy the percieved injustice is peculiar, to say the least.

The stats I cite contain nominations. Blue slips do not cancel a nomination.

It is not at all normal to accept a plea from the ringleader which would gain him no jail time if an accomplice faces 7 years. Prosecuters should not have offered such a plea.

Sebastian,

I'm suggesting that by playing a pure obstruction game for the past four years, Democrats can't obstruct these two any more than they do completely qualified judges.

You've given us one example of this "pure obstruction game."

And you know very well that the Republicans obstructed many of Clinton's nominees. Are the Democrats simply supposed to roll over and let Republican presidents name all the judges, especially when they nominate morons like these?

If we are "all the worse for" the power politics involved then it is clear that Republicans bear a very large part of the blame. Not only was the Senate obstructionist under Clinton, but people like Hatch continue to make the kind of utterly dishonest statements I cite above. And Bush continues not only to nominate ideologues, but basically to poke Senate Democrats in the eye with things like these renominations.


"It is not at all normal to accept a plea from the ringleader which would gain him no jail time if an accomplice faces 7 years."

If by "normal" you mean "common," then yes, it is.

"Prosecutors should not have offered such a plea." Agreed.

"Are the Democrats simply supposed to roll over and let Republican presidents name all the judges, especially when they nominate morons like these?"

Have we forgotten Pickering already? I think we just spent a huge number of posts on him. Or do we pretend he wasn't qualified? Or do we pretend he was a racist?

"If by "normal" you mean "common," then yes, it is."

Hmm, I think common would be a situation where a plea is offered to a ringleader for a one or two year sentence while an accomplice gets seven years. You might be right, but I hope not. In any event, this case does not allow for the 'Pickering is a racist' game which Democrats played against him--especially considering the rest of his history. That was crass political destruction of a man--and not even because the Democrats particularly disliked Pickering, they were trying to send a political message to Bush.

The whole power game over judges is ridiculous anyway. We have given judges way too much power.

This is simply untrue -- it seems unjust, but it happens all the time. Sentences are calculated with regard to each individuals record and conduct, without regard to parity with co-conspirators. The Federal prisons are filled with low-level drug criminals serving heavier sentences than their higher-level co-conspirators, because the higher-level co-conspirators had useful information to give. I've never seen anything indicating that sentences given to co-offenders either conventionally are or should be considered in the sentencing process.

(On the judicial nominations -- if I'm wrong, I'm wrong. Sorry.)

Are you arguing that by opposing Pickering the Democrats forfeited any right to oppose other nominations?

Let's go back and review the Clinton nominations that were blocked. If I can find one I think was a good nomination does that mean that by opposing it the Republicans forfeited any right to oppose others?

I looked at Kyl's statistics, which cover only the first four years of Presidential terms. He doesn't seem to know that from Jan 2001 to May 2004 is a little over three years, not four, but never mind. It is worth noting that Clinton enjoyed a substantial Democratic majority for the first two years of his term, whereas Republicans were in the minority during Bush's first two years. It is also worth noting that Kyl's crabbing about obstructionism includes the District courts. Apparently the distinction only gets important when someone points out that over 95% of Bush's nominees have been confirmed.

"Sentences are calculated with regard to each individuals record and conduct, without regard to parity with co-conspirators."

Sure. Once you get to the sentencing phase that is true. The fact that the plea bargain system is out of control is what causes the problem.

"It is worth noting that Clinton enjoyed a substantial Democratic majority for the first two years of his term, whereas Republicans were in the minority during Bush's first two years."

There is a flaw in your reasoning here-- it has to do with who is in the minority now.

"Are you arguing that by opposing Pickering the Democrats forfeited any right to oppose other nominations?"

When did I say that? In my view Pickering is a clear case of obstruction. I said that Democrats wasted political capital on obstruction, and now they are about to pay for it by having trouble with stopping a nomination that they really won't like. I said that Democrats played the race card against Pickering and are about to have it played against them.

I am saying that this whole thing, from both sides, appears to be pure power-politics, and us common folk are likely to suffer. We will suffer because perfectly good judges like Pickering won't get elevated and bad judges are now likely to make it through.

Sure. Once you get to the sentencing phase that is true. The fact that the plea bargain system is out of control is what causes the problem.

That has nothing to do with Pickering. (I agree with you in general.) Unless you can show that he had a general practice of fighting for sentencing parity between co-offenders, the incident still shows him taking an unusual action with regard to a situation that, while perhaps unjust, was very ordinary, in order to lessen the sentence of a man convicted of burning a cross on a black couple's lawn.

Sebastian: you've done it again: you've sent me off on a search for statistics I would never otherwise have looked for, thereby making me a better and more well-informed citizen, albeit one with less remaining free time.

I looked at the cite you gave of judicial nominees confirmed, and it was out of line with everything else I've seen, not to mention my own recollection. So I went off in search of the facts, and/or some understanding of whether I was wrong. Oddly, the facts are hard to find. However, a progress report:

The stats you cite are for the first four years of Clinton's presidency. Those first four years include two when the Senate was controlled by Democrats, and thus when Clinton's nominations had an easier time of it than they did later. The senate Democrats helpfully post a chart broken down by Presidential term. It shows Clinton's nominees in his first term being broadly comparable to Bush's, but Clinton's nominees in his second term (e.g., with Republicans in charge) doing a lot worse.

The thing is, the figures the Democrats give out do not match those the Republicans you cite give out. In the case of Bush, this is understandable: the GOP figures you cite were compiled earlier than the Democratic page, and so more nominees could be confirmed between when the Republicans put their figures together and when the Democrats did. But other figures, like the number of judges nominated by previous Presidents, also don't match up, although the variations aren't huge. I am trying (a) to find that actual stats, and (b) to figure out what one group is counting that the other isn't.

I will note (not specifically for Sebastian, I assume he knows this, but for anyone else who doesn't) that counting by nominees actually confirmed is the way to go here: one of the ways in which people get confused about this is that Republicans under Clinton used to bottle things up in committee, whereas Democrats under Bush, lacking that option, have to use filibusters. So when Republicans say something like: never before have so many filibusters been used! they are right, but they don't always add that they blocked a lot of judicial nominees by other means, since when you control the Senate Judiciary Committee, filibusters are not necessary.

There is a flaw in your reasoning here-- it has to do with who is in the minority now.

I don't think so. Wouldn't we expect a president with a large majority to do better than one with a minority, without resorting to arguments about obstruction, etc.? That's the comparison Kyl is making, for half the period, anyway. Or are you maintaining that during the first two years of Clinton's term the Republicans could have filibustered but nobly refrained? I don't think so.

We will suffer because perfectly good judges like Pickering won't get elevated and bad judges are now likely to make it through.

I agree that we will suffer, but blaming our suffering on "both sides" because the Democrats blocked Pickering is ridiculous. The blame for bad judges rests with the President who nominates bad judges and the Senate that confirms them.

Hilzoy --

I've actually been looking for another source of the stats too (my earlier assumption that they didn't include blue-slips was due to a reaction like yours, that they were out of line with what I'd seen before) and you're right, they are hard to find. If you find them, something I'm wondering is whether the stats Sebastian posted include judges nominated by Bush but who have not yet been through the process as "nominated but not confirmed". That seems as if it might artificially lower Bush's confirmation rate, if it is the case.

It looks to me like Lizardbreath's conjecture about the difference in the numbers is plausible.

Kyl shows 51 circuit nominees, with 30 confirmed, as of May 17, 2004. Dorgan shows 52 nominees, with 35 confirmed, as of July 22, 2004.

Ha ha! I have at least found stats for Bush, courtesy of the DOJ. Statistics for the nominees in the 107th Congress (2001-2) are here. Stats for the 108th Congress (2003-4) are here. In using these to derive actual statistics, I got all confused -- Bush's numbers seemed way low to me.

I thought of LizardBreath's question, but most of the Circuit Court appointees have had enough time to get through the process. (of the 17 unconfirmed Circuit Court appointees, two had hearings in June 04, one in Sept. 04, and one in Nov. 04. All others had earlier hearings. I have no idea howfast this stuff normally moves.) And besides, on comparing my stats to other sources, the odd thing was that the number of confirmations was in the right ballpark; it was the number of nominees that was way high.

But then, on this list of the nominations during the 108th Congress, I noticed some asterisks, and two asterisks next to a date turn out to mean: "Date of original nomination during the 107th Congress. This nominee was renominated on 1/7/03, at the beginning of the 108th Congress." Eureka! That means that each of those nominees was nominated both in the 107th and the 108th Congress, not just once. And on the assumption that if a nominee comes up several times and is rejected several times, that should not count as several rejected nominations, I subtracted the number of judges with these asterisks from my total 107th plus 108th nomination figures (not from the confirmation figures, since, of course, I figured none of them would have been confirmed twice.) In this way I arrive at the following figures for Bush's nominees in both Congresses combined:

Circuit Court: 52 nominated, 35 confirmed: 67% confirmed
District Court: 177 nominated, 168 confirmed: 95% confirmed
Total: 229 nominated, 203 confirmed: 87% confirmed.

hilzoy: counting by nominees actually confirmed is the way to go here...

Well, it answers a question; I'm just not sure it's the question we're actually interested in. It's a good first approximation, though.

I second Hilzoy's view -- Sebastian is out of line with his remark about alleged Dem obstructionism. The Repubs blocked more nominees in the Clinton era when they had control (it makes no sense to pad the numbers with the period when they did not have control), and used procedural tricks that they then eliminated once Bush was elected.

Plus the issue here is the absolutely nut-ball quality of some of these nominees. Arguments about "obstructionism" end up being a phony way of avoiding the issue of the character of these people.

Re Hilzoy's comment about the lawyers perspective, I have been a courtroom lawyer for 24 years, including a fair degree of appellate work (including some successful published opinions in California -- for those wonks that know what that means).

These types of judges are a nightmare, without regard to their ideological stripe. Even though they may speak publicly on occasion and reveal their true selves, they usually are masters at dissembling when on the bench. If they are not sneaky, they are not successful as they are too easily branded as fringers, and don't get selected for higher judge positions.

They are also masters at imposing their weirdo ideological agenda on the law while pretending that they are not doing so. Their most revolting quality is their intellectual dishonesty. You cannot reason with them because they are not actually motivated by the windowdressing explanantions they use for their decision-making.

These people are being nominated precisely because they put their fringe ideology in front of the law, and can be relied upon to do so in their decision-making.

While I'm posting research results, here (pdf) are the memos Sebastian referenced. I would not trust the summary: it claims, for instance, that one memo has Democrats saying that "most of Bush's nominees are Nazis", a quote I have been unable to locate. It could be that at a certain point my eyes glazed over, but I did try and fail to find it.

For the most part, the memos say things like: NARAL requests that we not schedule this nominee's hearing for a few weeks, so that we can do our research. This seems to me completely unobjectionable, since it's not as though e.g. the NRA can't use that very same time to do its research, and I basically think that when you have not just the Senate staff but also various advocacy groups coming up with odd stuff, you're more likely to find any dreadful things that are out there to be found.

It also has memos that basically say: we should fight Estrada's nomination, since he's likely to be nominated for the Supreme Court if he gets this job. If the Democrats had not been engaging in this kind of strategizing, I would have been amazed.

The one bad thing that I saw was the memo about the Michigan case, to which Sebastian refers. It is a memo from someone whose name is blacked out, but who seems to be a Kennedy staffer, to senator Kennedy, noting that someone from the NAACP wants a hearing on one judge to be delayed until after the Michigan affirmative action case has been decided. The staffer notes that the idea of a delay seems dodgy, but also that there's another person who was nominated three months before who's also waiting for a hearing, and who's up for a vacancy that has been declared a judicial emergency, and also that the Michigan case is important, and recommends delaying the hearing and holding a hearing on the other nominee first.

However, this is a recommendation from (apparently) a staffer, not e.g. a memo from Kennedy himself. Nothing in the memos reveals what Kennedy's reaction to this was (or: the reaction of any other Senate Democrat.) I would want to know that before drawing conclusions about Senate Dem. obstructionism in this case. (Speaking as someone who once worked for politicians, in my youth, I can attest that sometimes staffers are stupid. I was.) It's also worth noting that the person from the NAACP who made this request was fired, if this post from the Free Republic is to be believed.

Hilzoy, Ugh, and Dantheman,

I think there's a little confusion going on regarding the court's jurisdprudence.

Dantheman is right about Lochner - it was about the contract clause, and whether states could regulate employment conditions. The court held that they couldn't. That line of jurisprudence was overturned pretty quickly, by cases such as Nebbia v. New York.

The line of cases that has Brown and her ilk all incensed starts with NLRB v. Jones & Laughlin Steel Co., from 1937. Prior to that case, the court had repeatedly struck down New Deal legislation, such as the National Industrial Recovery Act, on the grounds that Congress' law-making power was strictly limited to the purposes set out in the Constitution. Then in 1937, the court started taking a more expansive view of Congress' power under the Commerce Clause, and upheld the Wagner Act, aka the National Labor Relations Act. A lot of people think the court changed course in response to FDR's plan to put up to 15 more Justices on the Supreme Court, so that a majority would have a view of the constitution more amenable to his legislative program. Legal nerds thus call Jones & Laughlin "the switch in time that saved nine."

I'm off to play bridge, so I probably can't comment more until tomorrow, but since three people have taken up this, I want to quickly address it.

"Those first four years include two when the Senate was controlled by Democrats, and thus when Clinton's nominations had an easier time of it than they did later."

Comparing Clinton first term to Bush first term should be no big deal, because in both cases they had their own party in control for about 2 years. If it is true that Clinton had an easier time in his first 2 years than Bush has had in his second 2 years, that implies that either Republicans were not as obstructive as they could have been, or that Democrats are much more obstructive than Republicans were. The Democrats are not now in the majority. If Bush can't get as many through, it is because something else is going on.

Once again I am going to mention Pickering, because Democrats chose to make him a high-profile take down. He was completely qualified and unfairly tarred with being a racist. In any judge's career you could easily find something as questionable as his query about the concurrent sentences--in fact it is amazing that is all they could come up with. In almost any judge's career you could probably find worse--if they bothered to care about individuals in cases and their interaction with law. Pickering was a power-politics take down. As such, I just have trouble with the idea that Democrats are not being obstructive. They smeared a good man just to piss off Bush. It worked. I'm not going to defend the two particular judges in the main post, but I'm also having a lot of trouble dredging up an ounce of sympathy for Democrats who now find that their racial and power politics from earlier have spent their political capital now that they should really want it. This is part of my long-term critique of the judicial system's interaction with the rest of politics. We have allowed judges to become way too powerful. As such the nomination process has become way too political. It isn't good for the long term health of the country, but I don't see it changing unless we change our bad habit of throwing a huge portion of the the major decisions their way.

If it is true that Clinton had an easier time in his first 2 years than Bush has had in his second 2 years, that implies that either Republicans were not as obstructive as they could have been, or that Democrats are much more obstructive than Republicans were.

A. Clinton had a much larger majority - 57 or 58 Democrats as I recall - than Bush.

B. There is at least one explanation besides the two you provide: Clinton's nominees were not left-wing nutballs. Or, if you prefer a more polite wording, Clinton's nominees were relatively moderate compared to Bush's (surely this is true if we substitute virtually any President's name for "Clinton") and so aroused less fervent opposition.

I'm also having a lot of trouble dredging up an ounce of sympathy for Democrats who now find that their racial and power politics from earlier have spent their political capital

How about some sympathy for the country at large?

Frankly, Sebastian, it seems to me that your whole series of posts on this thread is aimed at not having to concede that Bush is responsible for his rotten appointments. You concede that these two are indefensible, but you can't quite seem to say that it's Bush's fault. Yes, I know I'm mind-reading, but look at it. Bush makes terrible nominations, and instead of saying that, gee, maybe he should pick people with brains, you go on about political capital and Pickering and how judges have too much power, and all sorts of things.

Say what you as much as admit to be true. Bush is making bad judicial appointments.

Yes, but Sebastian: Here are the stats.

Bush:
Circuit Court: 52 nominated, 35 confirmed: 67% confirmed
District Court: 177 nominated, 168 confirmed: 95% confirmed
Total: 229 nominated, 203 confirmed: 87% confirmed. (This according to my calculations from DoJ stats, above.)

Clinton's first term, acc. to Democrats:
Circuit Court: 42 nominated, 30 confirmed: 71% confirmed
District Court: 204 nominated, 170 confirmed: 83% confirmed
Total: 246 nominated, 200 confirmed: 81% confirmed.

Clinton's first term, acc. to Republicans:
Circuit Court: 39 nominated, 30 confirmed: 77% confirmed
District Court: 197 nominated, 169 confirmed: 86% confirmed
Total: 236 nominated, 199 confirmed: 84% confirmed.

I still don't understand why the two parties' stats come out differently. However: according to both, Bush did significantly better than Clinton's first term with district court judges. According to the Dems, he did slightly worse, and according to the GOP 10% worse, with circuit court nominees. According to both, Clinton's nominees did worse overall. So I don't see that this supports the idea that Democrats obstruct more.

Have fun playing bridge ;)

I'm looking forward to the nuclear option and the bitterness which will follow.

hilzoy,

At your prompting I read Judge Rogers Brown's speech. [eek!]

Imagine my surprise when today I heard Boyden Gray, interviewed by Terry Gross on Fresh Air, assert that the reference to "our [1937] socialist revolution" was taken way out of context. In his view, the speech indicated how mild "our revolution" was, in contrast to the Terror or the 1917 [Russian] revolution.

He also said that the judge must be not be a radical conservative since she won her election in California, a liberal bastion.

Just letting you know what the spin from the Committee for Justice is.

"Clinton's nominees were not left-wing nutballs."

I don't buy it, see for example many of Clinton's 9th Cir. appointees.

I'm perfectly unhappy to admit that the judges hilzoy outlined aren't great. And I'm perfectly unhappy to admit that the Democrats blew their wad on slandering perfectly good nominees.

Thanks hilzoy and Bernard for adding some statistics to this discussion.

Sebastian, are you now willing to retract your statement that "The Democrats absolutely started out in 2000 and 2001 with obstructing almost every nominee"?


I'm perfectly unhappy to admit that the judges hilzoy outlined aren't great. And I'm perfectly unhappy to admit that the Democrats blew their wad on slandering perfectly good nominees.

Not my point, Sebastian. All that's clear from your previous comments. My irritation is with the idea that the bad judges are somehow the fault of the Democrats because they "blew their wad" on slandering "perfectly good nominees." (not exactly a solidly established fact)

As I said above, bad judges are the fault of the President who appoints them and the Senators who confirm them. Yet you're trying to twist bad appointments into a harangue about Democratic obstructionists, coming very close, it seems to me, to putting the blame for Brown and Haynes on the Democrats, instead of where it belongs - on the President and the nutball wing of the Republican Party.

"Sebastian, are you now willing to retract your statement that "The Democrats absolutely started out in 2000 and 2001 with obstructing almost every nominee"?"

Nope, because the fact that nominees get through 2 or more years later does not in any way negate the fact that obstruction was taking place. It just means that the obstruction was not successful in stopping every nominee. Furthermore, the unusually lower rates of nominees getting through even 2 or more years later remain unexplained by those who want to deny the obstruction. Furthermore there are memos which detail the desire for obstruction.

"Yet you're trying to twist bad appointments into a harangue about Democratic obstructionists, coming very close, it seems to me, to putting the blame for Brown and Haynes on the Democrats, instead of where it belongs - on the President and the nutball wing of the Republican Party."

Ok, if you want to it see that way I can't stop you. This is part of my long-standing frustration with the fact that judicial nominees shouldn't be as important as they are because we should be a much more democratic society than we are.

I'm making a separate point about the ridiculously high level of importance we have to place on judges.

I'm making a further separate point about the fact that playing power politics can expend energy which leaves you unable to act when the time is more appropriate.

If you want to ask why we aren't getting good judges out of Bush, the answer is because Democrats kill off the nominations of good judges like Pickering and Bush responds by nominating worse judges who are harder to tar with one of the Senate Democrats' uglier weapons--charges of racism. It is absolutely bad that Bush is nominating such judges now. But it is also absolutely bad that his good picks were tarred with unfairly tarred with racism and shot down. And while we are trying to force admissions out of each other, I would love to hear you admit that. :)

But Sebastian: they're not 'unusually lower'. Overall, they're not 'lower' at all, and even restricting ourselves to circuit courts, they aren't dramatically lower (and if the Dem. statistics are right, scarcely lower at all.)

Agree with Bernard Y. Strongly agree. Sebastian can't bring himself to admit that the Republicans are mostly to blame for this. And it's very strange.

Is anybody else getting tired of this game?

Here's the game we're all playing: let's do everything we can to try to say that my team is somewhat less bad than your team. It's all about team team team. Yay Republicans go Republicans yay. Yay Democrats go Democrats yay.

Real world example comes up. "We're all in deep shit if X happens." Well, I don't want to think about how to make X not happen, or mitigate the badness of X happening -- I just want to blame the other team for X! If I can do that, I'm happy. Yay team! We're not as much to blame for X as the other team is!!

And if it is incredibly obvious that most of the blame for X, in fact, belongs to my team, then I will make sure to say or imply that half of it belongs to the other team. Because my team is good and your team is bad.

Sebastian looks to me to be the worst offender in this respect, at least on this thread, though perhaps (typical liberal self-doubt) that's just because his team is not my team.

Proposal to try to improve future discussions. Could people agree that the response to "X is terrible!!" in the future will not be "Hey, your team is [more/as much] to blame for X [than/as] my team is!"

More discussion of the actual issues, less on teams. It's worth a shot. Isn't it?

While I was writing, Seb came out with some pure fantasy that I have to respond to.

The reason Bush is appointing nut-jobs is that his good appointments got shot down?!?!?

Right. There are NO MORE good judges to appoint. All the good ones were shot down. Ah well. I guess we have to appoint nutjobs.

Please!!! There are zillions of perfectly good judges out there who are not nutjobs. Any half-competent president who cared about having decent judges on the bench would appoint them. This president doesn't care about that.

"Right. There are NO MORE good judges to appoint. All the good ones were shot down. Ah well. I guess we have to appoint nutjobs."

No that isn't what I was saying at all. I was saying that rather than make the choice based on actual merit, Bush has to make the choice based on resistance to trumped charges such as that of racism.

See Pickering.

Which you apparently do not.

"Nope, because the fact that nominees get through 2 or more years later does not in any way negate the fact that obstruction was taking place. It just means that the obstruction was not successful in stopping every nominee."

So far, you have fixated on 1 nominee which you view an injustice as having been done to (Pickering). You admit that other nominees (some of whose nominations predate Pickering's filibuster) were not of sufficient caliber to have been nominated. I am left with the impression that you either do not understand the words "obstructing almost every nominee" or that it means something far different to you than it does to me.

To me, it means that the vast majority of the nominees (i.e., a much, much larger number than 1) who should have been confirmed but for the conduct of the Democrats were not. If your only complaint about the nominees the Democrats filibustered is Pickering, then I am convinced that you need to retract your statement.

Pickering is an illustrative example. Illustrative in the tactics used and illustrative in your disinterest in talking about. He was not the only nominee blocked. He was just the one which Democrats successfully smeared all over TV.

Sheesh, people who talk about chilling effect when asking for a tape and don't see how it works when Senators get away with publically smearing an excellent judge with racism--one of the most vicious charges likely to appear in American politics--is not someone whom I will be listening to on a lecture about my inability to understand issues.

Obstructing a nominee does not always equal successfully stopping a nominee. See for example trying to stop an apointment until your side gets a favorable Circuit Court ruling. That nominee was obstructed. We will never be able to prove that happened because of of the memo. That isn't proveable without a tape from Kennedy saying: "Today I am acting to delay the nomination in order to help us get a good ruling on the affirmative action case." But sure is suggestive.

Democrats have obstructed a huge number of nominees. They have successfully stopped a larger number of nominees than have been successfully stopped before. Even Hilzoy's numbers from the Democrats suggest that. It is sad, but unsurprising, that nominees should be chosen on their ability to resist Democrats' political attacks more than their overall competence. That occurs because mere competence (Pickering) and a long history of helping deal with race problems in the South (Pickering) wasn't enough to help out when the Democrats decided to use the racism smear (Pickering). Pickering isn't the only one, he is just the highest profile one. Personally, I would renominate people like Pickering and break the Democrats' filibuster by forcing them to actually stay up all night for a week and fight him. I would personally make sure to broadcast commercials of Democrats reading from a phone book or whatever as 'debate' during the filibuster.

Therefore, I personally am not thrilled with Bush's decisions to just choose people who are mostly immune to the Senate Democrats' typical racial games instead of forcing the issue.

But the tactic of nominating really fiery judges who the Democrats will be nonetheless unable to stop with their normal smear tactics to show Democrats that their practice of smearing excellent judges will be counter-productive, is certainly something I can understand--though not support.

You know, the cross-burning thing isn't necessarily an accusation of racism. Pickering's actions were a statement that he doesn't think the federal hate crimes law is appropriate (A harsh sentence for a drug crime? No problem. A harsh sentence for a hate crime? An injustice that must be remedied!) It's combined with other publicly held opinions that other civil rights laws (e.g., the Voting Rights Act) should be weakened.

Now, your obvious rejoinder is "Don't be disingenuous, this is obviously just a coded way to accuse Pickering of racism." Nonetheless, these are legal positions, and controversial ones. How could anyone who opposed Pickering in good faith for his legal positions on these issues do so, without laying themselves open to your claim that they were falsely accusing him of being a racist?

Did you see the actual accusations against Pickering? Or are you speculating on what you wish they should have been because of the context of this thread?

The actual accusations were along the lines of "Pickering is the type of guy who wants to protect cross-burners". If you scroll up to this thread, you can see that even here.

See for example this comment by LizardBreath:

"Pickering did have that little "soft on cross-burning" problem, regardless of his other qualifications."

Sebastian--

By his actions, Pickering appears to consider the normal operation of federal law with respect to hate crimes, specifically cross-burning, unjust. That makes him soft on cross burning, which is what I called him. You read implicit speculation into his motives into that: me, I don't know if he's racist or philosophically opposed to hate-crimes laws. The beauty part is that I don't have to know -- either one of those is a reason for me to oppose him.

You appear to call an accusation that Pickering wants to protect cross-burners an illegitimate smear; the fact is, that when the issue came before him, he went far out of his way to protect a cross-burner from the normal operation of the law -- I think we can assume that he did it because he wanted to. The accusation you're calling a smear is true. Whether he wanted to out of racism or out of opposition to hate crimes laws doesn't matter to someone (like me, and like many Democrats) who would consider either a reason not to place someone on the appellate bench.

"You appear to call an accusation that Pickering wants to protect cross-burners an illegitimate smear; the fact is, that when the issue came before him, he went far out of his way to protect a cross-burner from the normal operation of the law"

Please note the easy and unjustified step from a cross-burner to cross-burners. Given the particulars of the case, which I have provided above, do you see the distinction? Note the difference in the charge between Pickering saw a particular injustice involving a cross-burner, and Pickering strives to protect cross-burners.

The second carries a clear implication of racism.

You do the same thing here: "You read implicit speculation into his motives into that: me, I don't know if he's racist or philosophically opposed to hate-crimes laws."

Compounding Pickering's concern was a conflict between two federal appeals-court rulings over the applicability of a statutory mandatory minimum sentence to the case. The Justice Department insisted that Swan be sentenced to a minimum of five years under one statute and two and a half years under a separate law. Pickering doubted whether both were applicable to the case and asked Civil Rights Division lawyers whether the same sentencing standards were used in cases in other federal circuits.

This isn't opposition to hate crimes (which by the way I think are bad policy). This is querying how the sentencing guidelines ought to work and perhaps pushing his concept of how they ought to work into the system. Something liberal judges do, all the time.

Just tell me, honestly, do you (purely on a personal level) believe the charge of being soft on cross-burning was aired on national TV for days without the intention of tarring him as a racist? If you believe that I will accept that we just can't talk about the issue because our premises are too different.

Sebastian,

I have deliberately avoided discussing Pickering because I am familiar only with the sound-bite version of the arguments. If you claim he would have been a better appointment than Brown or Haynes I believe you. And I'd certainly rather have Pickering on the bench than Bybee, for example.

But the rest of your argument is just silly. It amounts to saying that Democrats block qualified nominees with accusations of racism, so only those invulnerable to the charge can be nominated, and these are necessarily mediocrities or worse. Hence Bush can't be blamed. This is weak logic.

Besides, the vast majority have been confirmed. Are they mediocrities? If not, what does that say about your claim?

Given the particulars of the case, which I have provided above, do you see the distinction? Note the difference in the charge between Pickering saw a particular injustice involving a cross-burner, and Pickering strives to protect cross-burners.

No. That is, I see the distinction you're attempting to draw, but I don't accept it. The 'particular injustice', lack of sentence parity between co-offenders, is perfectly ordinary in the federal criminal system. Without any evidence that he was spurred into action by this injustice when he encountered it outside the cross-burning context, it is a reasonable assumption that the cross-burning/hate-crimes context was relevant to his thinking.

This is querying how the sentencing guidelines ought to work and perhaps pushing his concept of how they ought to work into the system.

And again, what he did was seriously unusual. He's a judge -- if he has a legal theory to support his position (or even without), he can give the guy the sentence he likes, and let the Court of Appeals sort it out. He's supposed to 'push his concept' by writing a persuasive opinion. What he did was an attempt to take an end-run around that normal process by pressuring the prosecutors to accept his position on sentencing. He acted in a remarkable (and arguably improper, regardless of the subject matter of the case) manner to get the defendant a lighter sentence in a fashion that would be appeal-proof.

Just tell me, honestly, do you (purely on a personal level) believe the charge of being soft on cross-burning was aired on national TV for days without the intention of tarring him as a racist? If you believe that I will accept that we just can't talk about the issue because our premises are too different.

Our premises seem different in general, and we may have reached an impasse on this point. In support of my position, two points. (1) The cross-burning thing isn't isolated, it's combined with a history of being generally anti-civil-rights laws (I'd have to do some research on this to give you details, what I remember is the Voting Rights Act.). Together, that gives rise to an impression that he is generally opposed to the consensus Democratic party position on laws relating to race. This could be related to racism on his part, but regardless of the motivation behind it, as a constellation of legal opinions it's a reason to vote against him and a powerful one; powerful enough to drive the emphasis I saw on racial issues during his confirmation fight. (2) The defense made on his behalf at the time, and one mentioned in the article you quoted, was that there were all sorts of black spokespeople who were willing to speak out on his behalf, and that he had good history fom the civil rights movement. This would be a reasonable, and should be an effective, defense to an accusation of personal racism; it would be entirely ineffective as a rebuttal to the fact that his views on the law are distasteful. The defense got no traction at all in the public mind, which suggests that what his opponents cared about were his legal positions, not his personal racism or lack thereof.

"What he did was an attempt to take an end-run around that normal process by pressuring the prosecutors to accept his position on sentencing."

Judges pressure prosecutors on sentencing and a host of other issues all the time.

I find this sentence "Together, that gives rise to an impression that he is generally opposed to the consensus Democratic party position on laws relating to race." combined with this sentence "it would be entirely ineffective as a rebuttal to the fact that his views on the law are distasteful." highly disturbing as an attempt to define what makes for a qualified judge. But I see much better where you are coming from.

"..was that there were all sorts of black spokespeople who were willing to speak out on his behalf, and that he had good history fom the civil rights movement."

I quoted (above) the fact that he did far more than that, including endangering himself so I find your summary not particularly accurate.

FWIW, I monitor the Fifth Circuit's output, and Pickering was a relatively liberal judge as that court goes. His one op that I saw on a civil-rights issue refused to lift penalties on a Louisiana private school that had a history of discrimination, holding that more time was needed to evaluate its alleged amends.

Of course, one could argue that Pickering was "on probation" when he wrote these ops, but they're consistent with his work as a trial judge. As a cheerful opponent of Bush and all his ways, I agree with Sebastian that the Dems went off half-cocked on Pickering, obnoxious law-journal comment & all. P. did a great deal more than most prominent white Mississippians ever did to reach out to blacks, with the result that our black U.S. rep, Bennie Thompson, was left to fume that Pickering's hometown black supporters were "Uncle Toms."

Sebastian,

Is it then your contention that had Pickering been routinely confirmed Brown and Haynes, for example, wouldnot have been nominated?

"Is it then your contention that had Pickering been routinely confirmed Brown and Haynes, for example, wouldnot have been nominated?"

That is too far a hypothetical from reality for me to make a useful contention. I'm pretty sure that if Democrats had not spent so much political captial on the good nominees that they would be more likely to do things about these nominees if they still came up.

Sebastian: Nope, because the fact that nominees get through 2 or more years later does not in any way negate the fact that obstruction was taking place.

which obstruction, for reference, was described thusly:

The Democrats absolutely started out in 2000 and 2001 with obstructing almost every nominee.

Is there anything we can do or say to convince you of the falsity of this article of faith?

I can't see the point of this debate. Surely no one is taking the position that these clearly wacko people should be appointed to get even with the Democrats for blocking appointments of people four years ago.
Can anyone make the case that either of these two nominees is fit to be appointed?

The comments to this entry are closed.

Blog powered by Typepad