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May 20, 2005

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Great post, hilzoy. If you keep this up, you'll start accumulating marriage proposals again.

Excellent, excellent research.

Not that it will do any good, of course. Ears that will not hear....

Unfortunately, it all requires listeners to have more than a 10-second attention span......

Thanks, hilzoy.

[Copied from other thread]

I was driving home from a late lunch (I'm staying home with a finicky sump pump) and heard the cloture motion live on C-Span radio. Frist was absent, so Cornyn did the deed. 18 co-sponsors of the motion, none of whom are those previously thought to be in play. I find it interesting that the motion specifically invokes Rule XXII to cut off debate. I mean, how does one get off arguing that the provisions of Rule XXII are irrelevant or unconstitutional as applied to a motion made under Rule XXII?

Also interesting is that Cornyn proposed a couple of alternatives before making the motion: first asking unanimous consent for 10 hours of additional debate to be followed by an immediate vote with no intervening motions [?] in order -- which drew a barely audible objection -- and then for more [15?] hours of debate followed by an immediate vote. Reid's voice was heard, objecting and making the point that he was permitted to object. I'm no rules maven, but this seemed a little silly to me, if the immediate consequence was to be the cloture motion. As it was unfolding, I thought this would be the nuclear moment, but with the filing of the motion -- and a vote to be taken on it sometime Tuesday -- the moment passed.

hilzoy: To clarify your bolded passage:

debate on a nominee cannot be concluded without at least one vote from the minority party.

should read

debate on a nominee cannot be concluded without at least one affirmative vote from the minority party.

since the minority party voting nay isn't sufficient to meet the given criterion.

Anarch: right you are. I will update. Note to anyone who is interested: I think this falls under the rubric of 'not changing posts in ways that alter their sense', but if anyone cares, the way Anarch quoted it was the way it read until, oh, a minute from now.

Interesting. Thanks for doing the research.

At least the democrats had the decency to not change all the rules giving the minority a voice when they had the majority.
Now the republicans are calling it ...what this week?...the "constitutional" option?

Wow, thank you. This provides excellent, exhaustive context of the action as a power grab.

Just remember these facts the next time Hatch launches one of his odious remarks about how unprecendented Democractic behavior is. Hatch was the king of obstructionism for years, and then since 2001 was the architect of undoing these devices used so often by the Republicans for years.

And the Hatch efforts blocked between 60 and 70 Clinton nominees, who were denied any vote -- compared to the 10 (now down to 7) blocked by Dems.

I expect this thread will be ignored by the usual Bush defenders -- facts being such troublesome things.

I'm ignoring this thread at the bequest of dmbeaster. I hate facts and I don't want to read how many laws the Republicans are breaking. So I am ignoring this thread. They are breaking the law, right?

Btw, anyone here know who won the election in 2004?

Just curious?

Omigod! The party in power is going after power. Who would have ever believed that? Thankgoodness FDR didn't load the court with judges that supported his policies.

123
The issue that many conservatives are also concerned about is when all the rules are changed in favor of the simplist majority that, despite your potential view on 'fairness' or 'intent', turnabout is fair play.

Btw, anyone here know who won the election in 2004?

oh how i hope you're here in 2007, when the Dems get to explore the intricacies of all these wonderful lawful loopholes.

123: Btw, anyone here know who won the election in 2004?

You are being simplistic. The Republican Party didn't win the 2004 election. Just like everyone else in the country, on November 2, 2004, I only got the chance to vote for the President, my congressman and two (or one or zero) Senators.

We don't vote for a political party to lord over the country every two years.

But hilzoy, surely all those things are unconstitutional. Why, the Constitution clearly requires a yes-or-no vote on judicial nominations.

I heard Bill Frist say so.

I heard Bill Frist say so.

For Bill Frist is an honorable man;
So are they all, all honorable men.

Going further into history, Madison proposed that it take a supermajority to reject a nominee (as picked up by Ann and Betsy).

I agree with blue slips being advisory, but the history has varied with the Chair. Joe Biden wrote to then President GHW Bush in 1989:

"The return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation of a judicial nominee, but it will not preclude consideration of that nominee unless the administration has not consulted with both home state senators prior to submitting the nomination."
Ever since Bork, judicial nominations have gotten more and more politicized, and now the environment is radioactive. The old forms of blocking and delaying made sense when Senators weren't so political over judges, and when the atmosphere was more collegial and less polarized. Those quaint traditions don't apply any more. This is straight, ugly, bare-knuckled power politics, and I don't see it changing back. Ever.

"This is straight, ugly, bare-knuckled power politics, and I don't see it changing back. Ever."

That is because one party can't get what it wants (banning or limiting abortion) through the legislature or constitutional amendment and so is determined to achieve its goal by stacking the courts with activist judges.

Charles notes: "Going further into history, Madison proposed that it take a supermajority to reject a nominee (as picked up by Ann and Betsy)."

Yes, the founders contemplated endless possible permutations of government they discarded. They also discussing having a king. It matters rather a tad more what they agreed upon, not what fancies crossed through someone's head.

"The old forms of blocking and delaying made sense when Senators weren't so political over judges, and when the atmosphere was more collegial and less polarized. Those quaint traditions don't apply any more. This is straight, ugly, bare-knuckled power politics, and I don't see it changing back. Ever."

Respect your sincerity, how is this different from saying "might makes right"? And what, precisely, in this reasoning doesn't apply to eliminating all filibusters, not just judicial filibusters, as the Republican leadership has sworn up and down will never, ever, happen, it's just judges, honest, trust us!

I have to state for the nth time how absolutely stunning it is to see "conservatives" dismissing breaking the rules of the Senate as trivial, and saying "those quaint traditions don't apply any more," period, in regard to our government. This is conservatism? What cannot be torn down with this reasoning?

I've pretty much always dismissed all those who mutter about creeping fascism, but I have to say that this sort of reasoning put forth as "conservative" is genuinely frightening to me. I know something about conservatism, and this, sir, is not conservatism. (Hi, Bob!)

This sort of "conservatism" would cut a great road through custom and law to get after the Devil of "liberals" and when the last rule was down, and the Devil turned 'round on you, where would you hide, the rules all being flat?

Hi Gary! Hi Thomas! More's granting the debbil his day in court applies even better to torture threads I think.

123: Cite, please, for where I've said FDR's court packing scheme was either A) not a power-grab exceeding the rules of the game or B) A good thing in any case.

You might want to start in the cube-shaped world where Lex Luthor am #1 Super Hero.

You're a fairly smart guy; try another argument besides the non-sequitur and see where it gets you.

"More's granting the debbil his day in court applies even better to torture threads I think."

Well, you know, the quotes are good for all seasons. (Couldn't resist, sorry.)

The old forms of blocking and delaying made sense when Senators weren't so political over judges, and when the atmosphere was more collegial and less polarized. Those quaint traditions don't apply any more. This is straight, ugly, bare-knuckled power politics, and I don't see it changing back. Ever.

I think that CB has a point here, though. Congress is no longer run by Ivy League alumni and those who defer to them. Nor does "not behaving like a gentleman" either get you a challenge to a duel or social ostracization. More people (and corporations, and countries) want to feel empowered to put pressure on congress people; the calls to the phones from Kos and FreeRepublic alone must mark a significant change in the way congresspeople understand their roles.

I don't think that this immediate climate is healthy for this particular rules-change, but the fact that the ability of the minority party is now limited to this bizarre, melodramatic last-ditch effort is even wierder. And the earlier rules hilzoy cites above are almost as byzantine as Sebastian's bridge conventions. Gentlemen's agreements and obscure "traditions" (my honorable opponent will know that a two club bid means that I am threatening a filibuster if he moves to cloture) don't seem quite the thing for a democracy that is vulnerable to rabid partisanship and well-organized, broad-based pressure groups. I don't know what would be better; I don't think it's working "just fine" right now, but I don't trust the people or the projects for current change.

Ever since Bork, judicial nominations have gotten more and more politicized, and now the environment is radioactive.

I know the popular wisdom is that this started with Bork, but it goes back further than that, to Fortas at least. Personally, I suspect it goes back to the 50s and the Warren Court; certainly bob mcmanus, among others, agrees.

I know the popular wisdom is that this started with Bork, but it goes back further than that, to Fortas at least. Personally, I suspect it goes back to the 50s and the Warren Court; certainly bob mcmanus, among others, agrees.

The NYT had some stats that would back that up. They had percentage of nominees confirmed going back quite a few decades, it has been falling steadily. I don't have a link, I was reading the dead tree edition. But I would be interested to know what people think the reason is that the percentage of judges being confirmed has been steadily falling for 40 years or so.

It ain't a Bork thing, started way before that.

Anarch:

You are right. Right-wingers like to blame it on Dems so they cite to Bork, ignoring history in the process. The reality is that the right's cultural war began in response to the decisions of the 50s, 60s and early 70s, and they seek activist judges to fight their cultural war. Bork was the first showdown on the right's agenda to politicize the courts with avowedly activist judges.

It is nonsensical to claim that opposition to that trend allegedly started it. But it provides cover for the obvious contradiction that Republicans are allegedly against activist judges while seeking to appoint them.

One thing should be clear -- judges make a decision in their careers to be activist and known as such, or not. The current crop of conservative activist judges have been doing it for years to get noticed and get picked for higher positions. The politization of the courts is deliberate both by the Republican judges and the Republican party.

The ultimate irony is that so much of the "activist" Warren court was shaped by Republicans (like Warren and Blackmun) as much as Democrats that were appointed to the US Supreme Court. This is really about the cultural war, which the Republicans also waged against the moderate elements (now defunct) in their own party.

Personally, I suspect it goes back to the 50s and the Warren Court; certainly bob mcmanus, among others, agrees."

If you look at hilzoy's confirmation stats, controversial judge nominations probably go back to the founding.

One of the biggest perks of being a Senator was the ability to get your home-state supporters federal judgeships, and it has been jealously protected. In practice, Senators had at least as much real power in the appointment of judges as the President (the President would bargain,haggle,trade,etc.) But Senators used to be very powerful independent agents, especially when chairmanships were based in seniority. Whether it is temporary or permanent, since Bork the partisan nature of confirmation fights has drastically increased. As Republicans have approached a majority, but not anywhere near a comfortable majority, they have been able to enforce party discipline. Democrats didn't need party discipline, when they had large majorities, or couldn't enforce it, in the days of Dixiecrats. Now they don't know what it is, but they will have to learn.

A Senator should not be so partisan; he shouldn't need the assistance of the President and Party to get elected as much as house members. When I was young Dirksen, Johnson, Russell were dudes, and the President made appointments with them, not the other way round

"Those quaint traditions don't apply any more. This is straight, ugly, bare-knuckled power politics, and I don't see it changing back. Ever."

Part of this has to do with the uncomfortable partisan majority of the Republicans. Should, God save us all, Republican approach 70 Senators, many of those traditions and games would re-emerge.

Respect your sincerity, how is this different from saying "might makes right"?

Well, I think I described the "might" part of it but did not offer an opinion as to "right". Both sides are playing power politics here, and it's just a fact of life, right or wrong. As for not messing with filibusters beyond judges, I take Frist & Co. at their word. You may have a different opinion. If the Republican principle is that judges should get an up or down vote, there is no reason to believe that Republicans will pursue removing filibusters in other areas. It's going to be hard enough removing the filibuster rule on judges. Why go beyond that? Why try to scorch earth that's already been burned?

I have to state for the nth time how absolutely stunning it is to see "conservatives" dismissing breaking the rules of the Senate as trivial, and saying "those quaint traditions don't apply any more," period, in regard to our government. This is conservatism? What cannot be torn down with this reasoning?

I would say it is conservative to upend the Democrats' supremely unconservative attempt to use filibusters on 22% of the circuit court nominees appointed by the president. This is a response to a new and unheard of precedent set by the Daschle-Reid Democrats.

I'm sure there was plenty of partisanship prior to Bork. The Fortas nomination was also partisan, but he had other problems and he wouldn't have been confirmed anyway, and that was in a Democratic-controlled Senate. Bork was a watershed moment because it ratcheted the partisanship to a level not before seen.

If the Republican principle is that judges should get an up or down vote...

But it isn't.

Or at least, if it is, it's a 2005 vintage. So it's not a really a "principle" at all, is it?

I would say it is conservative to upend the Democrats' supremely unconservative attempt to use filibusters on 22% of the circuit court nominees appointed by the president. This is a response to a new and unheard of precedent set by the Daschle-Reid Democrats.

And how do you counter the charge that the only reason that the Democrats are employing the filibuster is the Republicans' unprecedented dismantling of all other options for the minority party to block such nominations? There are certainly broken precedents here, and they almost uniformly stack up on the other side of the aisle. If the nuclear option is pursued then -- pretty much whichever variant is undertaken -- calling the Democrats "supremely unconservative" is going to run you out of adjectives to describe the GOP.

[For that matter, how do you counter the charge that the claim which is supposedly "unprecedented" gets more and more specific by the minute? What's next; this is the first time anyone's ever attempted to block a circuit court judge appointed by the President... while he was wearing a yellow tie?!]

Also:

The Fortas nomination was also partisan, but he had other problems...

True.

...and he wouldn't have been confirmed anyway.

False, insofar as we know. He probably had the votes at the beginning -- that's why they filibustered -- but his support was soft and it eroded over the four days of the filibuster.

"If the Republican principle is that judges should get an up or down vote, there is no reason to believe that Republicans will pursue removing filibusters in other areas."

If the Republican principle is a standard invented out of thin air, and in contradiction to all their past behavior of filibustering judges -- as it is -- there's no reason to believe they won't invent the same "Constitutional" "requirement" for any other nominee or bill. (As well, I'm not clear what would now stop them from violating any other Senate rule they like, since the Republican majority will be there to vote in favor of the President of the Senate's ruling that objection is out of order, and that's a hunky-dory way of doing business now.) But I don't imagine you'll agree, so you needn't bother disagreeing if you don't desire.

"If the Republican principle is that judges should get an up or down vote, there is no reason to believe that Republicans will pursue removing filibusters in other areas."

If the Republican principle is a standard invented out of thin air, and in contradiction to all their past behavior of filibustering judges -- as it is -- there's no reason to believe they won't invent the same "Constitutional" "requirement" for any other nominee or bill. (As well, I'm not clear what would now stop them from violating any other Senate rule they like, since the Republican majority will be there to vote in favor of the President of the Senate's ruling that objection is out of order, and that's a hunky-dory way of doing business now.) But I don't imagine you'll agree, so you needn't bother disagreeing if you don't desire.

On a complete tangent, I've been finding ObWings loading slower and slower in the past few days; then this morning, comments weren't working at all for me for a few hours; in the past couple of hours, the server is frequently not connecting at all.

If the Republican principle is that judges should get an up or down vote, there is no reason to believe that Republicans will pursue removing filibusters in other areas.
The Republicans claim that this supposed principle is in the Constitution, apparently embedded somewhere inside the words "advice and consent". Since those words apply to appointing not just judges but "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law", why on earth would anyone expect that the Republicans would stop at abolishing the filibuster for judges alone?

Gary, I fear that OW is becoming too popular for its current hosting environment and may need to move, as Crooked Timber did under similar cirumstances.

Breaking the rules in order to change the rules just does not fit any definition of conservative. The conservative way for the right-wing to deal with the intolerable situation of not getting everything they want is the try to get a filibuster proof majority, or win the war of ideas and convince enough Democrats to join in a legitimate vote to change the rules. You know, actually play by the rules, the way the Democrats are doing. Short of success there, the only other option is to act like mature adults and understand the wisdom of the Rolling Stones - "you can't always get what you want."

Just another little reminder that despite the "new" politization of the judicial nomination process.
Here are some interesting figures from American Enterprise Institute:
Judicial Nominations
Percent of nominees confirmed

Carter: 93.1%
Reagan: 96.1%
Bush I: 78.1%
Clinton: 87.9%
Bush II: 96.6%

Seems closer to an Executive State (you know what that means) if it is considered a problem that Bush isn't at 100% confirmation.
Especially considering that Reagan did have a lot more that a 2 to 3% "mandate."

This is slightly OT but a gentleman by the name of Patterico is offering a challenge to those who dispute Justice Owen's suitability as a candidate here. I'd suggest, to all who are interested in taking him up on the matter, that you read both the "rules" of the challenge as well as Patterico's previous columns and blog entries to get some idea of what you're getting yourself into.

I'd be interested in anyone's speculation how Justice Brown would have decided http://pacer.cadc.uscourts.gov/docs/common/opinions/200505/03-5153a.pdf> this case from last week, had she been confirmed, and on the panel. We know she doesn't like social security, and I'd guess she doesn't like illegitimacy. I'd guess no difference in result, but what's the big deal about getting her on the court then? I noticed that no DC Circuit judges were on Sebastian's list of bad Clinton appointments . . .

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