Conservatism In Theory And Practice

by hilzoy

According to Merriam-Webster, 'conservatism' means:

1 capitalized a : the principles and policies of a Conservative party b : the Conservative party
2 a : disposition in politics to preserve what is established b : a political philosophy based on tradition and social stability, stressing established institutions, and preferring gradual development to abrupt change
3 : the tendency to prefer an existing or traditional situation to change

This is a view I can respect, even when I disagree with it. Changing institutions can often have large unintended consequences, and a generally cautious attitude towards changing them often makes sense to me. To quote a passage from Chesterton that Sebastian cited recently:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

So why aren't more Republicans taking a conservative position on the nuclear option?

The various rules securing a voice for the minority party in judicial appointments are "gates" of the kind Chesterton refers to. Most of them have been done away with in the last two years. In some cases, like blue slips, I do not regret their passing. But I think it was wrong to override Rule IV of the Judiciary Committee, which holds that no nominee may be reported out of committee without at least one minority vote, since this rule requires the majority party to find candidates who are acceptable to at least one member of the minority. And it is wrong, as I have argued, to talk about the unprecedented nature of the Democrats' filibusters without taking into account the fact that every other means of blocking judicial nominees has been stripped away in the past few years.

The filibuster is a larger gate, one that I would think any conservative would hesitate before removing. It has been used to prop up injustice, and to delay necessary reform. But it has also served as a brake on temporarily popular measures that came to seem, with time, to be misguided. I would support reforming the filibuster. I would certainly support requiring Senators to actually go on speaking as long as needed in order to filibuster. With respect to legislation, I think it would be worth considering some provision whereby legislation introduced in successive sessions of Congress required smaller numbers of votes each time they were reintroduced, until eventually they could be passed by a bare majority. This would make it less likely that legislation whose support was fleeting, but to which a large minority was vehemently opposed, would be passed; while precluding a minority's using the filibuster year after year to obstruct legislation with lasting majority support. (Note: Mark Schmitt has a very interesting piece, "What I Learned About Filibusters From Writing One", on the indirect effects that filibusters can have. Worth reading.)

The case for a filibuster seems to me strongest in the case of judicial nominees. They are appointed for life. They have a lot of power. (Sebastian may say that they should not use that power, and I would agree with him, but they surely have it.) They should be thoughtful people, the sort who would attract support across party lines. (And since most of Bush's nominees have passed, in many cases with considerable Democratic support, I do not accept the claim that it would be impossible to find such nominees at present.) In any case, however, I would have thought that changing the rules to eliminate the possibility of a filibuster would be just the sort of 'reform' conservatives would regard with skepticism.

On all of these points, however, I can see how a conservative might end up advocating a change. What I cannot understand, however, is how any genuine conservative could support making this change by breaking the Senate rules. Again, here is what the majority proposes to do:

Either: the Democrats will filibuster; the Republicans will challenge the cloture rule (the one that says you need 60 votes to close discussion) as unconstitutional; the Vice President, in his capacity as President of the Senate, will rule that it is unconstitutional, the Democrats will appeal, the Republicans will move to table the appeal, and if they can get the 51 votes that a motion to table requires, the appeal will be set aside and the rule will be declared unconstitutional;

Or: A similar process will ensue, but the claim about the unconstitutionality of the cloture rule will be replaced by the claim that each session of the Senate is entitled to adopt its own rules by majority vote. Then the Vice President will uphold this claim, the Democrats will appeal, the Republicans will move to table the appeal, and if they have the requisite 51 votes, they will prevail.

Either of these options will involve the following things, all of which are both bad in their own right and, I would have thought, especially odious to conservatives:

* The rules of the Senate, and in particular its rules about how those rules are to be changed, will be simply set aside. The rules specifically state that they continue in effect from one session of the Senate to the next, that they can be changed only in accordance with the procedures they provide, and that debate on a motion to change them can be closed only by a vote of two thirds of the Senators. If the Republicans go for the nuclear option, they will be completely disregarding these rules. For more information on exactly how many rules and precedents they will need to ignore, see The Next Hurrah's series of 'Notes on the Nuclear Option', here.

* The Vice President will have to declare himself on a constitutional question which will alter the ways in which the Senate does business; and his ruling is likely to be exempt from judicial review. This, to my mind, raises serious questions about the separation of powers.

* Moreover, the Vice President will make his ruling not on the basis of his considered views about the Constitution, but to gain a partisan victory. The Vice President seemed to think filibusters were fine back in 1991:

"Faced with a close vote, Senate Republicans intimated that they would launch a filibuster rather than lose a vote in the whole Senate. Quizzed on the subject on the MacNeil/Lehrer Newshour, Cheney made it clear that he had no problem with a filibuster, saying that it would be better to have no vote at all than have a defeat."

Possibly his views have changed since then. On the other hand, since Cheney is an intelligent man, and since the case that the Senate's cloture rule is unconstitutional is virtually nonexistent, perhaps not. In which case, he is treating the Constitution, his oath to support it, the general requirement that this country function under it, and his honor, as trifles that can be swept aside when they stand in the way of some aim that he and his party want to achieve.

* Finally, the Senate will have to vote to uphold Cheney's ruling. Many of the Senators who have announced their intention to vote for the nuclear option have previously stated that they do not believe that filibustering judicial nominees is unconstitutional, or have said things that would make no sense unless they thought so. To cite two:

• On May 18, when Bill Frist was asked about his own participation in an attempt to filibuster a judicial nominee, he said: "The issue is not cloture votes per se, it’s the partisan, leadership-led use of cloture votes to kill - to defeat - to assassinate these nominees. That’s the difference. Cloture has been used in the past on this floor to postpone, to get more info, to ask further questions." If Frist believes that requiring 60 votes for cloture on judicial appointments is unconstitutional, then he must believe it's unconstitutional all the time, not just when it's partisan. Conversely, if, according to Frist, the problem with these filibusters is that they are partisan, then he cannot believe that they are unconstitutional.


• Rick Santorum, shortly before he compared Democrats to Nazis, said this: "Those in 2003 had the right to filibuster judges. I had the right, during the Clinton administration, to filibuster his appointments." His point is that, showing restraint, he did not do so. But if he actually believes that the cloture rule is unconstitutional, then he cannot believe that he or anyone else had such a right.

As before, the Senators who vote on whether to uphold the Vice President's rulings on the Constitution will not be voting for or against some legislative proposal. They will be voting about what the Constitution says, and what the rules of the Senate are. And they will be voting to uphold interpretations of these rules and that Constitution, which they have vowed to support, in ways that many of them simply do not believe are accurate. To quote Josh Marshall:

"Their reasoning will be that the federal constitution requires that the president makes such nominations "by and with the Advice and Consent of the Senate" and that that means an up or down vote by the full senate.

Nobody believes that.

Not Dick Cheney, not any member of the Republican Senate caucus.

For that to be true stands not only the simple logic of the constitution, but two hundred years of our constitutional history, on its head. You don't even need to go into the fact that other judicial nominations have been filibustered, or that many others have been prevented from coming to a vote by invocation of various other senate rules, both formal and informal, or that almost countless numbers of presidential nominees of all kinds have simply never made it out of committee. Indeed, the whole senate committee system probably cannot withstand this novel and outlandish interpretation of the constitution, since one of its main functions is to review presidential appointees before passing them on to the full senate.

Quite simply, the senate is empowered by the constitution to enact its own rules.

You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.

For all the chaos and storm caused by this debate, and all that is likely to follow it, don't forget that the all of this will be done by fifty Republican senators quite knowingly invoking a demonstrably false claim of constitutionality to achieve something they couldn't manage by following the rules.

This is about power; and, to them, the rules quite simply mean nothing."

I do not understand why people who regard themselves as conservative can look at this pure power grab, in which the Republican majority tries not just to remove a tradition of long standing, but to toss aside the rules of the Senate, willfully misinterpret the Constitution, vote that that interpretation is correct when they do not believe it, and thereby show that their word and their honor mean nothing, and not be appalled. If conservatism means anything good, it means respecting existing institutions, not trashing them; playing by the rules, not breaking them as soon as you can get away with it; and sticking to ideas like honor and respect when they are neither popular nor profitable. What the Republican majority is about to try to do is not conservative in any sense I recognize. It's just wrong.

Still, this might be understandable if the stakes were high enough: if, for instance, it were the only way to eliminate slavery. But for Priscilla Owen (pdf), who just received the worst ratings (pdf) given by the Houston Bar Association to any member of the Supreme Court of Texas? (She did particularly badly in two categories: "Opinions demonstrate well reasoned, clearly-written disposition of the case based on proper application of the law to the record?", and "Is impartial and open-minded with respect to determining the legal issues?") I can't imagine in what possible world appointing her to the 5th Circuit Court of Appeals could be worth this amount of damage, or why conservatives, of all people, should be willing to inflict it.

Comments

[Jesurgislac]

Sebastian: The problem with this formulation is it allows liberals to change institutions as much as they want and then invoke precedent whenever they are out of power to prevent changing things back.

Isn't that exactly what happened when the American Pledge of Allegiance was changed? In 1954, a 62-year-old institution was altered to make a temporary political point by a Republican president. Since then, as far as I'm aware, right-wingers have fought to retain it on the grounds of tradition...

In other news, I see that the tactic of threatening to abolish the filibuster has won the Bush administration three activist judges. I assume this tactic will continue to be used.

[Slartibartfast]

Like Priscilla Owen ruled on parental notification of abortion, going against the legistative language to the point of being so blatant that wacko liberal Attorney-General Alberto Gonzalez called it a ""an unconscionable act of judicial activism"? First what we need to do is get out of office any President who would nominate such a crazy Attorney-General, and all the liberal Senators who voted for him, right?

Assuming you meant this in seriousness, Gary, I urge you to read this dissection of that notion. Key points:

1) They left out the words "would be", which changes the flavour of the statement rather a lot - he did not direct his comment to views of the dissenters but, rather, toward what he saw them as asking him to do.

2) He said precisely that, under oath, in his confirmation hearing for US Atty. General:

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me.

3) Even had he not denied that his comment was directed at the signers of that particular dissent, Justice Owen wasn't one of them. She wrote a separate dissent on grounds utterly unrelated to the point at issue (which was, for the benefit of those people who simply parrot PFAW talking points without bothering to research them themselves - i.e., the Post and the Grey Lady - legislative intent; Owen's dissent was about the majority disregarding the findings of fact of a lower court).

[Dantheman]

By the way, Byrd is actually a GI, the generation before the Silents. The 14 signers are generally younger and more generationally diverse than I thought:

Democrats
Robert Byrd (West Virginia) b.1917
Daniel Inouye (Hawaii) b.1924
Mary Landrieu (Louisiana) b.1956
Joseph Lieberman (Connecticut) b.1941
Ben Nelson (Nebraska) b.1941
Mark Pryor (Arkansas) b.1963
Ken Salazar (Colorado)b.1955
Republicans
Lincoln Chafee (Rhode Island) b.1953
Susan Collins (Maine) b.1952
Mike DeWine (Ohio) b.1947
Lindsey Graham (South Carolina) b.1955
John McCain (Arizona) b.1936
John Warner (Virginia) b.1927
Olympia Snowe (Maine) b.1947

Only Inouye, Lieberman, Nelson, McCain and Warner are Silents. The 14 even includes an X'er (Pryor).

[Charles Bird]

It is conservative to remove an anti-conservative practice, a practice never before done in American history for circuit court nominees. I've said it before and I'll say it again, Republicans weren't engaging in a nuclear option, but a nuclear response.

[Slartibartfast]

Charles, I'm not all that motivated or concerned by matters of precedent in the Senate. And given that the rules don't forbid this "anti-conservative practice", I'd say that, conservatively speaking, you don't have a rhetorical leg to stand on. Which, I'd add, is alarmingly anti-conservative of you. There are other responses to the filibuster than pretending the rules don't exist. I don't think the Republican leadership has done a good job of exploring various alternatives to what amounts to cheating.

[Barry]

Posted by: Gary Farber :
"They're this pissed off: it must be a good deal!

I kid about my reasoning. But I'll take a little schandefreude. Read the whole thing. Oh, and don't miss where he calls Frist a "hamster." "

Gary, the right was highly pissed off that 10 out of 206 (?) nominees weren't confirmed; they were enraged that the Democratic Senators would dare to obstruct *any* of the GOP president's nominees, and they didn't care one bit that 60-odd of Clinton's nominees were back-stabbed.

Their standard for being pissed off is anything less than 100% success.

When you're enemy is enraged that he's only beating you soundly, and not trashing you twice as bad, that doesn't mean that you're winning.

[lily]

I have always felt the the real issue was the judges themselves. The ones I am familiar with cannot be supported on their merits. Myers, for example, believes that the government does not have the right to regulate the activities of private businesses on public land because, in his opinion, this interferes with their property rights (the profits). He is a former lobbyist.
The efforts to put these judges in office never seems to be based on the argument that the candidate might be a good judge. Instead the arguments are:
1. Revenge. The Democrats supposedly blocked Republican choices so Republicans should get even now and force the acceptance of these candidates.
2. Raw power. The Republicans have a majority so they should be able to do what they want.
3. We have to stop Democratic judicial activists and let's not talk about the rightwing lunatic fringe activism already displayed by candidates such as Myers.
4. Republicans get to change rules. Democrats aren't supposed to fight back.
It has been demonstrated ad nauseum that Republican Presidents have gotten the vast majority of judges that they have wanted. These particular judges were blocked because they were beyond the pale, well into the catagory of activist extremists. Revenge for blocked judges years ago, upsetness over left wing activism in the seventies, and the desire to exercise power do not justifiy inflicting us with decades of incompetent, out-of-the-mainstream activist judgements.

[CharleyCarp]

Dan, I've long been a fan of the Strauss/Howe formulation and thesis. Obviously there are going to be individual variations -- one should not expect that Paris Hilton and some anonymous but same-aged 3d generation trailer dweller to have the same world view.

Here, I think one has to look at a couple of interesting cultural factors. Southern boomers may be as implacably ideological as those of other regions, but one would expect to find fewer liberals among them. Just as one would expect many fewer New England conservative boomers. I'm not sufficiently acquainted with Mr. Salazar's history, but judging solely (and probably unfairly) by his surname, I'd entertain the possibility that he might not be on the same broad 90 year cyclical pattern as Lincoln Chaffee.

[Bruce Baugh]

Like a bunch of others here, I'd be open to discussing the possibility of judges needing 60 votes in a not-filibusterable vote, the moment the committee system starts working again like it used to. In the absence of that, I'm stuck with this: the Republican leadership is dishonest and power-obsessed, and there is no honest defense of their preferences apart from "I want that outcome at any cost". Any defense of their actions and justifications requires accepting at least one significant distortion of past or present reality, and usually quite a few more. And I'm trying to live my life as honestly as I can, committing myself to as few demonstrable falsehoods as I can.

[CharleyCarp]

And to add to that point, I wonder if it isn't the case that Sens. Snowe and Collins, as well as Landrieu and Pryor, owe their offices to Silents turned off by their local Boomers.

[Phil]

I've said it before and I'll say it again, Republicans weren't engaging in a nuclear option, but a nuclear response.

No, what they were engaging in was what's commonly described as "lying their frigging pants off," namely by professing to be upholding a principle -- "all judges deserve an up-or-down vote, and the Constitution mandates it" -- which a) they themselves had expressly disavowed as recently as last year, and b) is not written anywhere in the Constitution, and c) they were willing to cheat in order to achieve.

. . . a practice never before done in American history for circuit court nominees . . .

Blah, blah, blah. So what? If it's not forbidden by the rules, then tough crap. Not ever doing anything simply because it's never been done before isn't conservativism, it's stagnation.

[Dantheman]

CharleyCarp,

Salazar was (I am pretty sure) born in the US. His brother is also in politics. So I don't think he should be an exception to Generational theory on those grounds.

I have little surprise that GI's are for the compromise (although there's so few left) and that X'ers think there's far bigger issues facing the country than whether Bush gets 95 or 97% of his judicial nominees confirmed. What surprises me is that half of the signers are Boomers.

And while I will concede the point that a Democrat from a solidly red state or a Republican from a blue one may have felt some pressure to make a deal, that still leaves out DeWine and Graham, both of whom based on their other votes were surprises to me.

[liberal japonicus]

By the way, Byrd is actually a GI, the generation before the Silents.
Dantheman
Does GI refer to the generation or to actual service? Inouye was a GI (and was awarded the Medal of Honor after a review during Clinton's admin), but I don't think Byrd served in the military. The link you gave looks interesting, but I wanted to ask before rooting around the site.

[Dantheman]

lj,

Generation. Inouye is actually right on the cusp between the GI and Silent generations.

The site has forums, which are somewhat unfocused. The participants range very widely, but tend Democrat. There is a great deal of paranoia there, as the Generational theory indicates we are rapidly approaching (or possibly already in) a major existential crisis which will re-focus politics for the rest of our lifetimes.

While I have learned quite a bit about Peak Oil (i.e., that we are approaching the point at which the rate of oil being drilled worldwide starts to fall and the large amount of currency flows, I also have seen many silly catfights over political and social matters in my lurkings.

[Slartibartfast]

I was Googling about for some explanation of what this "Constitutional option" is, and why it's supposedly "Constitutional", and found this. I still have no idea what the Constitution has to do with it, but I do have a better idea of how it's supposed to work and why, and I have to say that I'm even more confused now than I was two weeks ago, on the point of legality, morality, etc.

[KCinDC]

C. Boyden Gray was just on the Diane Rehm Show, and he repeatedly stressed the idea that judges who are like the three allowed through under the agreement cannot now be filibustered under the "extreme circumstances" standard. He clearly knows how to read a contract, and can see that the two points are completely separate in the agreement, so he's knowingly spreading misinformation, but I'm sure this will be the Republican talking point. If this is also the understanding of the Republicans in the group of 14, then either the agreement won't last long or the Democrats essentially caved completely.

[John Thullen]

Lily: I would like to add to the four arguments you presented, a fifth:

That, in fact, packing the courts with judges whose personal ideological views are as radical as Myer's (regulation on public lands violates property rights) or Brown's (landmark New Deal legislation is Socialist and violates the Constitution) is the surest, activist way, if elections go the wrong way, to make sure these personal ideologies become the ideology and law of the land.

Yes, this Republican Party (may we allow that there is a Republican Party and that generalizations may be made without impugning the views of individuals?) likes the eye-gouging and the vengeance part too, but radically remaking the country and destroying the power of the Federal Government is the point.

[CharleyCarp]

Dan, one need not have been born outside the US to be part of a different cycle. As noted, I suspect that some of the Boomer members are in office as representatives of Silent interests. That is, that the least Boomer-like of candidates wins in a face off between Boomers, because Silents dislike Boomers so much.

LJ, it's the generation name in the scheme. If you haven't looked yet, it's a system of looking at generations as a series of 90 year cycles, each with 4 components, going back to the 15th century (in England).

Obviously, Japan would have a completely different rhythm, and I for one would be very interested in your take on that, once you've gotten into the scheme.

[Bernard Yomtov]

Just to weigh in, I think the compromise is OK, though it gets a lot better if Brown is defeated in a floor vote. The side effects are important. Frist is eviscerated, and deservedly so; this is a man with no principles whatsoever. Bush is weakened (bet McCain is feeling his oats), the lunatic right suffers a setback, moderate Republicans demonstrate some clout.

Imagine the opposite scenario - a successful vote to kill the filibuster. All those things go the other way.

To those who would have preferred a losing fight to the end, remember poor Mike O'Day:

Here lies the body of Michael O'Day
Who died maintaining his right of way.
His right was clear, his will was strong,
But he's just as dead as if he'd been wrong.

[liberal japonicus]

Thanks DtM and CC, it looks interesting. I'll start googling around this week to see if any Japanese have taken interest in it.

[Dantheman]

CharleyCarp,

"As noted, I suspect that some of the Boomer members are in office as representatives of Silent interests. That is, that the least Boomer-like of candidates wins in a face off between Boomers, because Silents dislike Boomers so much."

I don't think there's a specific thing like Silent interests, only personality traits. Please clarify what you mean by that. I especially doubt that Silents would be inclined to assert any such interests (part of being a Reactive Generation).

There are certainly people who do not fit the archetype of their Generation, and therefore may be more appealing to members of another Generation. But I suspect you mean something different than that.

[Dantheman]

lj,

I don't recall any Japanese commentators. I know there's at least one thread on Japan, under the Beyond America folder.

[bob mcmanus]

Peace in Our Time

[Gary Farber]

"Salazar was (I am pretty sure) born in the US."

In Colorado.

"His brother is also in politics."

John Salazar is in the United States House of Representatives, actually, for the Third Congressional District of Colorado. They're the only siblings presently in Congress.

[Gary Farber]

Byrd was not a GI, correct:

One of those skills -- welding -- was in demand after World War II started, and he worked during the war years building "Liberty" and "Victory" ships in the construction yards of Baltimore, Maryland, and Tampa, Florida.

[CharleyCarp]

Enjoyed that article on the "constitutional option," which is defined as the right/obligation of the Senate to adopt new rules at the beginning of the session, notwithstanding the explicit Senate rule that its rules continue. Thanks, Slart. One notes that this argument has been made a number of times, but never actually put into force. One also notes that the author worked for Sen. Frist, and is this hardly disinterested.

WRT the comments of Mr. Gray, the WaPo had a http://www.washingtonpost.com/wp-dyn/content/article/2005/05/23/AR2005052301640.html> feature on him today, about how he was engaged by the Admin to get all the nominations through. Inasmuch as he is not a party to (or proponent of) the MOU, one would hardly call his interpretation persuasive.

[freelunch]

I like the idea of restoring the rule that at least one member of the minority party should vote for a judicial nominee to get that nominee reported out of committee. I would also support a supermajority requirement for all judicial nominees.

Yes, Frist was like an enforcer who was coming to collect protection (for Dobson?) from Reid, but there are times when you have to swallow a pay something and wait for the opportunity to point out how Frist's behavior was designed to destroy the value of the Senate and would effectively weaken our Republic. That is something that has to be discussed during the election. Just as Roosevelt backed off after losing on the court packing scheme, so we will probably see more appropriate nominees for the rest of this congressional term. It will then be up to the Democrats to get the electorate to punish Frist's allies and the fencesitters who didn't sign the pledge in 2006 for being willing to support Frist's attempted Senate coup.

[bob mcmanus]

"one member of the minority party should vote for a judicial nominee to get that nominee reported out of committee. I would also support a supermajority requirement for all judicial nominees."

Delusional. This is what we get when we call McCain & Graham "moderates" False hope and placidity.

"so we will probably see more appropriate nominees for the rest of this congressional term."

You see? This ain't Bush/Cheney. We might get nominees slightly less crazy than Brown, but they will be very very bad, more conservative than Scalia. freelunch thinks we have won, hilzoy.

The truth is not getting out there. We have a conservative party and a nutzoid party, and as long as you talk "moderates" and "compromise" we will keep moving to the right.

When do we start screaming "Stop!" and keep screaming til we get our country back? Let me know when you reach your limit.

[CharleyCarp]

There are certainly people who do not fit the archetype of their Generation, and therefore may be more appealing to members of another Generation. But I suspect you mean something different than that.

Nope, this is pretty much what I had in mind.

Of course the sample sizes are so small when one is talking about senators -- I don't know who ran against the various Boomers among the 14, and so what the choices were really like. But it's fair to say that ATBE, a Silent is going to prefer a moderate Boomer to a fully actualized frothing-at-the-mouth ideological Boomer, and when presented with a choice like that, depending on the demographic mix, you might see moderates.

[Dantheman]

CharleyCarp,

Your theory certainly does not apply to my prototype Boomer Senator, Rick Santorum. He ran against Silents both times, beating the quasi-incumbent Harris Wofford (whose picture should be next to the dictionary definition of Silent) in 1994 and Jim Lloyd in 2000 (who was drafted to run for the office as sort of a retirement present from the State Senate). I don't recall seeing voting breakdowns by age for either election, but I do not recall any reports of such differential voting either time.

[Anarch]

I'm getting all messed up with these "GI" and "Silent" Generations nonsense. In the spirit of mathematical harmony and precision, would you mind referring to them as Generations V and W? TIA.

[BTW, anyone who thinks that generation should be called "Silent" has clearly never met my dad...]

[CharleyCarp]

Small sample sizes will do that. At the individual level, the model really breaks down -- and having been born in the same year as Michael Jackson, I'm not sorry that there are variations.

1994 was a Boomer year. Republican Silents, for whatever reason,* let their Boomer colleagues have their heads. (Except where they didn't!) In 2000, you're looking at an incumbent, which changes everything.

* Fear of Dem Boomers is what I think it was for most, although there was a strain of people who voted against the Admin because they thought it was ineffective.

[Slartibartfast]

One notes that this argument has been made a number of times, but never actually put into force.

And it still hasn't, although the threat of it has been used previously, as noted, by someone who's now currently engaged in vigorously denouncing that sort of thing.

[KCinDC]

Bernard, an opposite scenario wouldn't be a successful vote to kill the filibuster -- that's the opposite of an unsuccessful vote to kill the filibuster. If the nuclear option had come to a vote and been voted down, that would have been a big victory for Democrats. What happened is somewhere in the middle, and it's very unclear where along the line it is, until we see how it works out in practice.

CharleyCarp, I wasn't suggesting Gray's interpretation was persuasive, just predicting that it would be all over the media, coming from various Republicans, as a way to say the deal was a Republican victory. Also I was expressing fear that some Republicans in the group of 14 may agree with him (or might later have their arms twisted into agreeing with him), though we have no real way of knowing yet. The other guest on "Diane Rehm" was Tom Mann of Brookings, who was entirely too "balanced" in his statements. I wish Rehm had found someone as supportive of the Democrats as Gray was of the Republicans.

[CharleyCarp]

KC, I wasn't disagreeing with you. And DeWine seems to be back-tracking a bit, exactly as you feared. The real tests will be Brown later this week, and the next nomination to be made. Estrada would be an extraordinary circumstance. Racicot would not.

(Feeling free to apply my own definition . . .)

[KCinDC]

Perhaps the fact that all the traditional methods of blocking nominations have been abolished by the Republicans counts as a extraordinary circumstance?

[Jeremy Osner]

Perhaps the fact that all the traditional methods of blocking nominations have been abolished by the Republicans counts as a extraordinary circumstance?

Hah -- nice try. Sebastian has already made it perfectly clear, seems to me, that the traditional methods of which you speak are only applicable when used by Republicans.

[Bernard Yomtov]

an opposite scenario wouldn't be a successful vote to kill the filibuster -- that's the opposite of an unsuccessful vote to kill the filibuster. If the nuclear option had come to a vote and been voted down, that would have been a big victory for Democrats.

Fair point, KC. But let's step back a minute. We let three, or maybe only two, nominations go, and kill some mysterious number (four?) of others. In addition we retain the right to filibuster nut cases - what else can "extraordinary circumstances" mean, and weaken Frist's hold on the Senate considerably. We also get a statement from seven Republicans that the President should consult with Democrats on nominees. That's not meaningless.

Who knows how the filibuster vote would have gone? We can speculate about the Republican participants' motives, but we can't conclude anything. They are obviously willing to defy Frist up to a point, but not happy about allowing filibusters. Call it fifty-fifty, though I suspect that the odds were Frist would win. Would you rather flip a coin on the filibuster, essentially giving Bush a totally free hand on the judiciary if you lose, or take this deal?

[Barry]

Bernard, I don't see where Bush doesn't have a free hand, for all practical purposes. When the all but the most extreme 1-2% percent of your nominees are confirmed, that's close enough to a free hand for everybody but the wingnuts.

For the Supreme Court, having a nominee rejected in a bruising Senate battle is totally acceptable, for Bush's purposes. He's got to have a dozen candidates lined up, who are all hard-core rightwing whackjobs, with records clean enough to evade press scrutiny.

[rilkefan]

Via John Cole, an excellent (if very partisan) post by Tacitus in his very-partisan-but-excellent mode.

[KCinDC]

I'm still unsure how to feel about the compromise. At first I thought much the same as you say, that it was better than taking the gamble, but now I'm more doubtful. It all depends on how it works out in practice in weeks and months to come.

I'm not sure that we've killed any nominations, or that we've retained the ability to filibuster nut cases. That all depends on what "extraordinary circumstances" means. Some Republicans will say that since the Democrats have let the current nut cases through, future nut cases won't be extraordinary.

The statement about the president needing to consult does seem meaningless to me. Do you actually think it means anything to the White House?

One thing that's worrying me now is Graham's statement "And watch this group of 14 to come out with some deal for Social Security." I don't want to see Lieberman and company snatch defeat from the jaws of victory on Social Security "reform".

[Gary Farber]

Is "trevino" "Tacitus"? Shoot me, I haven't paid enough attention to know.

[SomeCallMeTim]

We got rolled. As others have pointed out, it's going to be hard to argue that the nomination of anyone who's not worse than Owens or Brown violates the deal. So either we vastly overhyped how bad those two were, or we were unlikely to ever see the hypothetical "worse than Owens" nominee anyway. Gawd we suck at politics.

[rilkefan]

Gary, I find his "I can plum it up as good as Hitch even without having read all of Alec Waugh's letters or even Evelyn's" style instantly recognizable - perhaps you would too if he spent more time in the above-mentioned mode.

[Bernard Yomtov]

The statement about the president needing to consult does seem meaningless to me. Do you actually think it means anything to the White House?

No. But it might mean something to the Republican signatories.

KC,

I agree this could work out badly. The answer seems to depend on who Bush nominates next and what these Republicans see as "extraordinary circumstances." What we know is that they find it in their interest to oppose the hard right that seems to control their party. That in itself I take as a positive sign.

I would love to know which of two scenarios is accurate:

1. Frist had the votes, but lost some to this deal.

2. Frist didn't have the votes, but some R's preferred this to a straight vote against the leadership. And maybe some of his votes though this better than losing outright.

I'm inclined to think #1, but I can't defend that very strongly.

barry,

Again, who knows what Bush will do? If he thinks he has a problem with the moderates he may not name a nut case. Or he may.

[Jackmormon]

From around the blogs, it looks like some of the Republicans from the 14-person caucus might vote against some of the nominees. That they're forming a core of resistance against filibusters--*and* against some of these nominees, who will, at some point, need the votes of most of the caucus's Republicans. Without some kind of unwritten agreement for a Republican or two to shift sides on maybe Brown, I don't really see the incentive for the Dems (besides saving the Senate from itself).

Tacitus's post is a good one, but, man, some of the commenters! On the one hand, it's good to see some of the hardcore pro-lifers start to wake up to the fact that they're being played; on the other...well, it's always spooky for me to run across a single-issue voter, I guess.

[Jackmormon]

Oh, hell. Did that work?

[Gary Farber]

"Gary, I find his [...]style instantly recognizable...."

As I've said, I've really read very little of Tacitus's writing.

[CharleyCarp]

That RedState thread is really compelling reading. Of course it's amusing to think of pro-choice voters going to the barricades to put JRB on the DC Circuit -- where she can write decisions upholding FERC determinations, questioning FCC determinations, and suchlike. Then again, it's such a den of judicial activists . . .

As I've thought about this through the day, the ball is really in the President's court. He can easily bring it back to confrontation, or can decide to have the Senate spend its time on his legislative agenda. I personally think that that his debt to voters wrt judges has been paid, and that he can pursue SS reform, immigration changes, whatever else. War with Iran maybe. Or Syria, which seems to be up to something.

That the next Supreme Court nominee is going to be someone who thinks Roe was wrongly decided is obvious, and I think, un-extraordinary. Whether it's someone who also thinks that Griswold was wrongly decided is another matter. Reading those comments on the RedState link, there's folks looking for the reversal of M'Cullough v. Maryland and Marbury v. Madison. Nominating someone who agrees with these views would be extraordinary, and probably not worth 51 votes anyway.

[rilkefan]

No deal ?

[Anarch]

rilkefan: No deal ?

It's not so much Frist's "reneging" on the deal since he never really signed on to it in the first place, it's whether the 7 Republican signatories side with the Democrats in maintaining the filibuster. That we don't know yet, and frankly may not know until it comes down to the wire.

Assuming the report is accurate, however... well, I expected some kind of hardball, particularly aimed at the Republican "defectors", I just didn't anticipate it quite this soon. Game on!

[Anarch]

rilkefan (redux!): Via John Cole, an excellent (if very partisan) post by Tacitus in his very-partisan-but-excellent mode.

Indeed. Very partisan; very excellent.

[Phil]

In all honesty, that may be the best thing I've ever seen Tacitus write, in terms of his getting to the nut of what needs to be said so that the GOP can get its sanity back. What's funny is that he said a great many of the same things I and others have said to Charles Bird on this issue -- notably, One may well quibble about the distinction between a judicial and legislative filibuster, and one may rightly point out that the Democrats under Reid were doing something quite novel. But the former distinction is a fundamentally dishonest one -- having crushed the filibuster on judicial nominees, who is so naive as to believe it would remain untouched elsewhere? -- and a novel use of a venerable tool does not invalidate that tool. I wonder of Charles finds it more palatable or correct coming from Tacitus than from people he considers to be ideological opponents.

[liberal japonicus]

Thanks for the pointer to the Tac post, Rilkefan. Quite fascinating in that Tac suggested (though perhaps he has retracted, I don't know) that it was necessary to go to the mattresses for Bolton and is taking this tack, while Seb has been convinced (I think) about Bolton's unsuitability, yet seems to have strongly defended the nuclear option as the only way to move forward towards a less activist judiciary. Of course, if you had told me that I was going to be reading John Cole and being in total and complete agreement, I would have thought you were crazy, but his posts excorciating the 'Newsweek is the enemy crowd' have been spot-on. I should add that I'm not suggesting hypocrisy on anyone's part here, just trying to add up the pieces.

The question I have is whether it is really possible to go back to the way it was. I'm sure all of you history minded folks can bring up examples where naked partisan extremism was ratcheted back (Post Civil War? Aftermath of FDR's court packing scheme?) but this looks like the inevitable result of political trends to energize the base, and create maximal differences that can be exploited.

[Sebastian Holsclaw]

"The question I have is whether it is really possible to go back to the way it was. I'm sure all of you history minded folks can bring up examples where naked partisan extremism was ratcheted back (Post Civil War? Aftermath of FDR's court packing scheme?) but this looks like the inevitable result of political trends to energize the base, and create maximal differences that can be exploited."

It isn't possible to ratchet back on judicial nominees so long as we allow the judiciary to make so many important decisions without legislative or Constitutional text input.

[rilkefan]

After my negative comment about him yesterday, it was only fair to do him justice today.

By the way, lj, I can attest that Cole has been posting like that consistently for at least several months - wish I'd started reading him a year or more ago.

[Gary Farber]

"Of course, if you had told me that I was going to be reading John Cole and being in total and complete agreement, I would have thought you were crazy...."

John has displayed great sense on the Republicans almost ever since the election, when the scales seemed to fall from his eyes, overall, with rapidly accelerating speed. Check out the overwhelming majority of anything he's written in the past three months. (Since he's got so much so well, I've deliberately restrained myself from mentioning to him that there's nothing he's been saying that doesn't apply equally well to the Republican leadership since 1980, or, at the least, 1994.)

[bob mcmanus]

"Senate Majority Leader Frist will file for cloture on President Bush’s nomination of William Myers to the 9th U.S. Circuit Court of Appeals later this week, according to sources on and off Capitol Hill, wasting no time in testing the resolve of 14 Republican and Democratic senators who forced at least a temporary halt to the battle over Democratic filibusters of President Bush’s judicial picks." ...Congressional Daily, via Atrios/Eschaton

Frist is of course crazy to insult McCain and Graham this way. Right? They have given their word. Of course all the Dems think the moderates will stand tall against the nuke. Probably so. But if not, the deal is broke, and Rogers-Brown and Owen will have lifetime appointments and Dems will have nothing.

[bob mcmanus]

If the seven, or the 14 go nuclear after the confirmations of Rogers and Owen, laughing and spitting in Democrats faces, I want mass resignations, not from leadership positions, but from the Senate.

[bob mcmanus]

rilkefan beat me to it. sorry

[rilkefan]

Yes, bob, you didn't need to second me on the suggestion that the Dems abdicate from the senate if they get screwed on national tv, giving them carte blanche to shut down the chamber and hence Bush's agenda through the next election.

[bob mcmanus]

4 in a row, but sorry.

If Frist goes forward on Myers, if I remember the process correctly, Cheney will make his call from the chair to end debate, Dems will appeal, a move will be made to table the appeal, and the the "moderates" step forward.

But Cheney has already made his call, the precedent is established, and the filibuster will be dead. All the "moderates" can do is to stop cloture on the appeal, in other words, keep debate going indefinitely. Get the cots, McCain and Graham can be tested for weeks.

Is this right?

[liberal japonicus]

By the way, lj, I can attest that Cole has been posting like that consistently for at least several months - wish I'd started reading him a year or more ago.

John has displayed great sense on the Republicans almost ever since the election, when the scales seemed to fall from his eyes, overall, with rapidly accelerating speed.

Well, that's two impressive recommendations. I realize this is off the topic of the thread, but I'm curious how you guys found your way over there. slarti gave a bunch of links concerning the Gonzales quote 'against' Owen, and after looking at the points made (especially the Ipsum Dixit blog), I started reading the other posts and, well, wasn't too impressed (I hope this doesn't offend, just noting), so I'm interested in how you and others expand your reading.

[lily]

I really don't think the stop-judicial-activism argument has any validity in this situation. The judge candidates, by their own statements, are prepared to make rulings that will profoundly change things we take for granted as normative--such as post-Depression era social legislation and the right of the government to regulate the use of public lands by private businesses. These judges will be activist, Sebastian. Their expressed opinions show it. I will try to accept your word that you are opposed to activist judges, but it is hard when you so persistantly advocate for beyond-the -bounds-of normal-conservative-activists like Meyers.

[Francis / Brother Rail Gun of Reasoned Discourse]

SH sez: "It isn't possible to ratchet back on judicial nominees so long as we allow the judiciary to make so many important decisions without legislative or Constitutional text input."

haven't we done this to death?

i thought that the judiciary was making so many important decisions because legislators were deliberately pushing the boundaries of the constitution.

or are there no justiciable limits to the state police power, despite the 5th and 14th amendments?

conservatives have been hungering for a renaissance of the commerce clause. where is the demand for a renaissance of the privileges or immunities clause? (since the p or i clause of the 14th amendment was supposed to create a federal check on state regulatory/police power, i'm not surprised by SH's reluctance to embrace this aspect of the socalled Lost Constitution.)

[Sebastian Holsclaw]

Bring on the priviliges and immunities clause. Even it doesn't get you Roe.

"i thought that the judiciary was making so many important decisions because legislators were deliberately pushing the boundaries of the constitution."

Is that what you thought? That doesn't get you Roe. That doesn't get you the death penalty cases. That doesn't get you the first amendment banning state constitutional amendments on all topics.

[Gary Farber]

"I'm curious how you guys found your way over there."

I've been reading John since around the time he started blogging, which is shortly after I did. Despite the fact that he'd spent plenty of time frothing at the mouth on points I utterly disagreed with, at times, he's always been an extremely honest, particularly intellectually honest, guy, and we've been friendly all this time. Before this past election, and for a bit afterwards, he expended a lot of breath on silly rants about Andrew Sullivan, pretty much to the point of obsession, but in line with his turn-around at the beginning of this year, he dropped that some months ago, and even apologized to Sullivan.

I read a lot of people I disagree with, but largely only if I find them interesting, and reasonably intellectually honest, unless it's for the sake of sporadically monitoring the horror, the horror.

And John's always been an example of someone I liked, even when we were in utter disagreement, and I thought he was simply ranting.

Now I get to enjoy his Rants For Good, Instead Of Evil. (We'll still disagree on bits and pieces, of course, and I don't expect him to give up his caught-by-Reagan-at-a-formative-stage idealistic feelings about Reagan-Republicanism any time soon, to be sure.)

[Bernard Yomtov]

Frist is of course crazy to insult McCain and Graham this way. Right? They have given their word. Of course all the Dems think the moderates will stand tall against the nuke. Probably so. But if not, the deal is broke, and Rogers-Brown and Owen will have lifetime appointments and Dems will have nothing.

Frist has no choice but to do this. It's his only hope. He's a goner without it. Will the moderates stick to their word? I think they will. But if they don't, how are we worse off? If they go nuclear now they would have done so before, and we still would have had Brown and Owen.

[Francis / Brother Rail Gun of Reasoned Discourse]

i hadn't read Roe in ages and just did. I'd forgetten just how heavily the court relied on SH's favorite theme: common law. To wit, at the end of the 18th century, fetal life was commonly accepted to begin at quickening.

thus, an originalist interpretation of the liberty right explicitly set forth in the 5th and 14th amendment and (allegedly implicitly) contained within the 1st, 4th and 9th amendments would allow a woman to terminate a pre-viable fetus.

[Jackmormon]

I looked over the 14th amendment at FindLaw as well, where I found a clear support of two values, which are perhaps in conflict here: the right of a citizen to life and to liberty.

Of course, the fact that the 14th amendment explicitly defends the rights of male citizens might go further into the problem...

[This next bit is really intended as an academic aside, not as either legal or political grist.] In my reading into late eighteenth-c thought, I've been finding that there was at this time a strange uptick in concern about infanticide. This pops up most famously in Malthus's Essay, where, for him, the only alternative to celibacy or eocnomic planning is infanticide (although aristocrats, at least, were using sheepskin condoms, the idea of contraception is never raised in the Essay). Adam Smith breaks through his stoicism in The Theory of Moral Sentiments to deplore "infant exposure," and Wordsworth devotes a large lyrical poem to the theme: "The Thorn." What gives? Nobody in the early eighteenth-c was writing about such matters, and few in the 19th-c wrote about such matters.

The only possible relevance to the current debate that I can see is that such tropes were circulating, and yet the founders chose not to address them, perhaps implicitly leaving them for another day.

[Dantheman]

"The question I have is whether it is really possible to go back to the way it was. I'm sure all of you history minded folks can bring up examples where naked partisan extremism was ratcheted back (Post Civil War? Aftermath of FDR's court packing scheme?) but this looks like the inevitable result of political trends to energize the base, and create maximal differences that can be exploited."

Generational theory suggests that politics does get unravelled after a successfully resolved Crisis, because the resolution of the Crisis requires a consensus and rallying around the leadership that saw the country through the Crisis. For example, 1950's post-Crisis politics were generally mild and less politicized than 1920's pre-Crisis politics.

[Gary Farber]

I blame the Anti-Monitor.

[hilzoy]

I blame the Anti-Merrimac.

[KCinDC]

I blame Auntie Em.

[Sebastian Holsclaw]

Harbinger warned about the Anti-Monitor but I'm pretty sure one of the Supermen can at least destroy his outer shell.

"hadn't read Roe in ages and just did. I'd forgetten just how heavily the court relied on SH's favorite theme: common law. To wit, at the end of the 18th century, fetal life was commonly accepted to begin at quickening."

That wasn't the national common law. That was the common law of some states. Other states disagreed. It was a state issue....

[liberal japonicus]

I blame Auntie Em.

We are definitely not in Kansas.

For those not familiar with the classical literature, more about the Anti-Monitor can be found here

[Gary Farber]

"Harbinger warned about the Anti-Monitor but I'm pretty sure one of the Supermen can at least destroy his outer shell."

Sebastian wins the doorprize for reference-catching! Congratulations, young man!

The reward is your universe is not destroyed.

[Slartibartfast]

John has displayed great sense on the Republicans almost ever since the election, when the scales seemed to fall from his eyes, overall, with rapidly accelerating speed.

Which is why I'd suggested him as a conservative addition to this weblog. John goes around the bend rather easily, but so do some others posting here. I have to say that I find him far more sensible than most other conservative bloggers I know, and he's reeled in the invective somewhat when it comes to our friends across the aisle. Dodd Harris is another guy who I've recommended, but Dodd's had some major problems with comments and trackback spammers, and so he's got comments turned off.

And I don't think John's so much against the whole Newsweek flap as he is against beating the media about the head and shoulders with the anti-American stick every time they publish articles that truthfully report unfavorable information about our military endeavors. I think that he, too, was a little disgusted with the circling-the-wagons conversation.

[liberal japonicus]

to our friends across the aisle

that's "members of the other faith" to you...

[CaseyL]

I would *love* to see John Cole added to the list of contributors! I found his blog during the Terri Schiavo mess, and have enjoyed it ever since.

There are a lot of trolls at balloon-juice, so I'd suggest we have our mallets ready to play Whack-A-Troll, as they'd very likely follow him over here.

[rilkefan]

Note that John is a more prolific poster than anyone here. Perhaps he could do a daily post here, though I don't know what he'd get out of it. Also note that he's mostly excorciating the right of late, which would not help our Balance. Perhaps he could do a (semi)-daily "Democrat Stupidity" crosspost here...

[Anarch]

The reward is your universe is not destroyed.

Yay! That's where I keep my stuff!