Out Of Bounds

by hilzoy

Today, in the debate over the nuclear option, Rick Santorum said this:

"We shouldn't go mucking around in this institution and changing the way we've done things, particularly when it comes to the balance of powers between the three branches of government, and the independence of one of those branches, the judiciary. We must tread very carefully before we go radically changing the way we do business here that has served this country well, and we have radically changed the way we do business here. Some are suggesting that we are trying to change the law, that we're trying to break the rules. Remarkable. Remarkable hubris. I mean, imagine, the rule has been in place for 214 years that this is the way we confirm judges. Broken by the other side two years ago, and the audacity of some members to stand up and say, how dare you break this rule. It's the equivalent of Adolf Hitler in 1942,saying, "I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine." This is no more the rule of the Senate than it was the rule of the Senate before not to filibuster. It was an understanding and agreement, and it has been abused." (Transcript mine, from the CSPAN video linked at Crooks and Liars.)

Four points. First, this is completely and totally out of bounds. And I don't mean this in some PC, "ooh he said the H-word" sort of way. I mean: no one who had a shred of honor, or who in any way appreciated the horror of Nazi Germany, would dare to make this comparison without thinking for a very, very long time about whether it was fully warranted, and whether there was no other way to make his point. In this case, there were many other ways. Santorum could, for instance, have compared the Democrats to a child who takes her sister's toys and then says, no, you can't take them, they're mine. He could have said any number of things and made the same point. But he said this. It's dishonorable and shameful. And yes, I feel the same way when Democrats do this.

Second, what I just said would be true even if Santorum's underlying point were valid. But it's not. In my last post I tried to explain what the Senate Rules say on the matter. They are here. Read through them, if you like, and let me know if you find the rule Santorum talks about when he says: "the rule has been in place for 214 years that this is the way we confirm judges"; a rule, I assume, that says: all judges get an up or down vote, or (alternately) no judge can be filibustered. I can't find it. I can, however, find a rule that refers explicitly to the possibility that nominations might not be voted on. And I can also find the rule on debate, which states (among other things) that "No Senator shall interrupt another Senator in debate without his consent", and also the rule that says that debate can be broken off only if three-fifths of the Senators vote to do so, except in case of a motion to change the rules, in which case two thirds of the Senators must vote to close debate. These are the rules the Republicans are planning to set aside without following the procedure set out in the rules. In my last post, I provided all the links you need to decide for yourselves such further questions as: is it unconstitutional to filibuster a judicial nominee? and: is the idea of requiring a supermajority to close debate on a nominee novel? The answer, in both cases, is no.

As to the question whether there is a tradition in the Senate of giving judicial nominees an up or down vote, I will quote another article by Norman Ornstein. But before I do, let me note again that Ornstein is a resident scholar at the American Enterprise Institute. He is not, that is, a liberal, let alone what some might refer to as a 'Bush-hating liberal', and he is an expert on Congress. Here's what he has to say:

"Now let us take up the assertion that we have had a two-century-plus tradition of giving presidents up-or-down votes on their judicial nominations. What are these people smoking? For more than 200 years, hundreds of judicial nominees at all levels had their nominations deep-sixed, buried, killed or asphyxiated by the Senate, either by one individual, a committee or a small group of Senators, before the nominations ever got anywhere near the floor. To be sure, most were not filibustered in the “Mr. Smith” sense, or in the modern and direct version. These judicial nominees were stabbed in the back, not in the chest.

Consider the history of Supreme Court nominations--the most visible and prized, of course, and the ones you’d think would have clearly fit Krauthammer’s notion.

Of the 154 nominations to the Supreme Court between 1789 and 2002, 34 were not confirmed. Of these, 11 were rejected by a vote of the full Senate. The remaining 23 were postponed, referred to a committee from which they never emerged, reported from committee but not acted on, or, in a few cases, withdrawn by the president when the going got tough. At least seven nominations were killed because of objections by home-state Senators. Five others were reported to the Judiciary Committee (which was created in 1816) and never made it out.

That is the Supreme Court. We don’t have a precise account of nominees to federal appeals courts or district courts, but we do know that there is a longstanding tradition, custom and unwritten rule applying to district court nominees, giving one or two Senators from the home state a veto power that has been exercised countless times. (That unwritten rule, incidentally, was shattered by Hatch, then the Judiciary chairman, when Clinton was president.)

This “blue slip” power was applied less frequently to appeals court nominees, but many in the past were killed far short of a vote on the Senate floor. Why weren’t more of them filibustered? Because it was easy enough to kill most of the controversial ones without resorting to a filibuster.

There is no record I can find of a historical period in which the Senate systematically killed such nominations. Rather, they tended to be done on a case-by-case basis. But that did change in the second Clinton term, when dozens of judicial nominees, including many to appeals courts, were denied hearings, in some cases for four or five years, not on the basis of any charge that they were ideologically extreme or unqualified, but rather because they represented slots on important courts, worth keeping open in case the next president turned out to be a Republican.

If we want to look for a breach in Senate traditions, that is where to start. And the failure to bring more than 60 to the floor for up-or-down votes makes one gape at Frist’s astonishing comment that the standard in the Clinton years was 51 votes. For these 60 would-be judges, it was a one-vote standard--that of the chairman of the Judiciary Committee."

To return to the point at hand: for Santorum to compare the Senate Democrats to Hitler would be completely out of bounds even if it were true that the Democrats had shattered 214 years of tradition, broken the rules, and then protested when Republicans did the same. But it is even worse in view of the fact that what Santorum says about the Democrats is simply, flatly false. If you think I'm just biassed or something, go read the relevant documents and let me know where I have gone wrong.

Third, on the subject of breaking Senate Rules, Rule 19 says, among other things:

"No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator."

I have a hard time seeing how one could argue that what Santorum said did not violate this rule.

Finally, to make a point that others have made, it will be interesting to compare various bloggers' responses to Santorum's remarks to their responses when some liberal has compared Bush to Hitler. Some examples:

"So if you can't show me the death camps and the horror, find another example. Compare Bush to Bismarck or Franco or Mikey from the Life cereal commercials for all I care — because any of those would make more sense.

By the way, I don't say this because I feel a passionate need to defend George Bush. I would make the exact same points if Al Gore were president. I would make the exact same points if anybody running for the Democratic nomination were president. This has nothing to do with partisanship. It has to do with the fact that such comparisons are slanderous to the United States and historical truth and amount to Holocaust denial. When you say that anything George Bush has done is akin to what Hitler did, you make the Holocaust into nothing more than an example of partisan excess. (...)

And that's how I think of all these people who e-mail me insistent that George Bush is a Nazi. They believe they are so important, so noble, their hatred and fear must be rooted things of Great Consequence. It's just so prosaic to hate Republicans. I am better than that. So, Republicans must be Nazis. They must be a threat to the whole world and to the sanctity of everything I hold dear because anything less would not be worth my time. George Bush can't simply be someone I disagree with. No, his popularity must be an indication of mass hysteria, of Nuremberg-style devotion to evil.

So desperate are these people to live in interesting times and play the hero, that they are willing — eager — to topple every significant moral and historical category so they can role play as the Heroes who Would Not Stay Silent. That would be fine if these losers were playing some multisided dice game in their basements. But they're not. There's a war going on and these guys are acting like we're the real enemy. That's not just shameful and stupid, it's unhelpful." (Jonah Goldberg, via Blogenlust)

"Comparing an American president to the fiendish fascist architect of death camps used to be seen as beyond the pale, the kind of ridiculous attack you might expect in the 1960s from wild-eyed SDS types. Now it's the message of the most active leftist political group in America, and it doesn't even merit a mention on the networks. (...)

What was true 20 or 30 years ago about public civility remains true today. Comparing American political figures or policies to Nazi Germany -- unless it's the actions of the American Nazi Party or their ilk -- is the first mark of a reckless kook. It's just too bad that the kooks now include the Democratic establishment and the liberal media." (Brent Bozell)

"I, personally, would like to see a moratorium on all references to Hitler, the Third Reich, Nazism and the Holocaust in the context of domestic political debate. Such a rule would have no perceptible effect on conservative discourse, but it would render the left virtually mute." (Hindrocket, also via Blogenlust)

And -- you knew this was coming, right?

"Senator Byrd's inappropriate remarks comparing his Republican colleagues with Nazis are inexcusable," Santorum said in a statement yesterday. "These comments lessen the credibility of the senator and the decorum of the Senate. He should retract his statement and ask for pardon." (link, via Atrios.)

As I said above, I don't think anyone should make these comparisons. I completely agree with Santorum that Byrd should have retracted his comments. (I have no idea whether or not he did.) And, like Hindrocket, I think there should be a moratorium on comparisons to Hitler unless and until we have something very much like Kristallnacht. But when I think back to the responses of some conservative bloggers when MoveOn.org had had two ads comparing Bush to Hitler on its web site, even though these ads were two of around 1500 submissions to a contest in which anyone could upload videos to MoveOn's website, the idiots who made them didn't work for MoveOn, and MoveOn pulled the videos and denounced the ads as soon as it found out what was on them, I have to wonder whether the same sense of breathless outrage will be forthcoming this time, when it's not just two random people who made the comparison, but a Republican Senator speaking on the Senate floor.

(For what it's worth, I don't say this because I assume it won't be. I do not, for what it's worth, expect Senator Santorum to follow his own advice, but I don't think it's beyond the realm of possibility that Jonah Goldberg might do the right thing. I just put up these quotes so that, in the days to come, we can compare and contrast.)

***

PS: Godwin's law still applies to us, even if Rick Santorum doesn't think it applies to him. I trust we will all manage to resist the many and various temptations this topic affords.

***

Update: I read in the NYTimes that Santorum has issued a statement:

"Mr. Santorum, who earlier this year criticized another senator for a reference to Hitler, later issued a statement saying the reference "was meant to dramatize the principle of an argument, not to characterize my Democratic colleagues."

He said, "Nevertheless, it was a mistake and I meant no offense."

Good for him for retracting it. Better he had never said it at all. (For the record, I did look on his web site for a statement; it was not there when I posted this, and is not there now.)

Comments

[bob mcmanus]

Thank you.

[DaveC]

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

[hilzoy]

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

[hilzoy]

DaveC: here's the Google search for 'Schiavo Nazi'. And don't forget this ad, which unlike the MoveOn ads was produced by Bush's actual campaign.

But look: it's wrong whoever does it.

[DaveC]

I am not so concerned about this Unitarian jihad, and I think that firing epithets at each other is better than firing Rocket Propelled Grenades.

Still, being subjected to this crap in church, like this passage:

These are the battles our soldiers are being used to fight. They are battles for a concept of empire so similar to the vision of Hitler’s Nazi party of sixty years ago that it’s hard to consider the similarities accidental. This is the ideology our soldiers are carrying into battle with them as they fight, kill and die not for freedom or the American way, but for greed, arrogance, and a murderous lust for power that seems terrifyingly insane.

on Veteran's Day for cripes sake. Now, I don't attend Rev Loehr's church, but I do sometimes go to a church whose minister is a friend of his, and I heard this sort of stuff coming from the pulpit, (not so much anymore, since I don't show up) and I think it is disgusting, and apparently I am the only one in the congregation who is not nodding.

And they keep sending me letters asking why I don't give more money to the church. I think the religious education classes were good for my kids, but they should buy a frickin' clue about how the majority of Americans think.

[DaveC]

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

[hilzoy]

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

[DaveC]

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

[hilzoy]

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

[Sebastian Holsclaw]

"Of the 154 nominations to the Supreme Court between 1789 and 2002, 34 were not confirmed. Of these, 11 were rejected by a vote of the full Senate. The remaining 23 were postponed, referred to a committee from which they never emerged, reported from committee but not acted on, or, in a few cases, withdrawn by the president when the going got tough."

There is a huge qualitative difference from a nominee being exiled to committee when the President's party does command a majority in the Senate and when he does. The reason why judicial nominees could be lost in committee was because the committees were controlled by the opposition--i.e. they reflected in small a larger control of the Senate. That is absolutely not true now.

[hilzoy]

Yes, but on Supreme Court nominations, the case for a filibuster being 'unprecedented' is a lot harder to make. Ornstein">http://www.aei.org/publications/pubID.22537,filter.all/pub_detail.asp">Ornstein again:

"Krauthammer--like Senate Majority Leader Bill Frist (R-Tenn.), Sens. Mitch McConnell (R-Ky.), Orrin Hatch (R-Utah) and their compadres--suggests that filibusters against judicial nominees are a fraud. He dismisses the filibuster against Abe Fortas as not a real filibuster, since he didn’t have the votes anyhow. He says, “two hundred years of tradition have been radically and unilaterally changed by the minority” Democrats, because they have lost the last two elections and fear losing the only branch they control, the courts, on which their loyalists have legislated “by judicial fiat everything from abortion to gay marriage to religion in the public square.” (...)

Where to begin? Let’s deal quickly with Fortas. First, apply Logic 101: If Fortas did not have the votes, why filibuster? If it was not a filibuster, as many Republican Senators have contended, explain the official Senate Web site, in its section on history, having as its headline “October 1, 1968: Filibuster Derails Supreme Court Appointee.” Must be the phenomenon Ronald Reagan talked about with his White House, that sometimes the right hand doesn’t know what the far-right hand is doing."

[DaveC]

I should note that there is no official Unitarian doctrine or creed, (in this way they are much like the Baptists) and each individual church and minister decides what will be said and done in that particular congregation.

I also think that the minister's primary responsibilty is to serve the members of the church, and to be of assistance when family troubles, including illness and death occur, and in celebration and affirmation of births and weddings and the like.

Oddly enough, people I know who probably thought that I was extremely liberal, and well, kind of far out, five years ago now have the impression that I'm some kind of Bible thumping reactionary. Neither one of these characterizations is really the case. I think that the same deal might be true for other "conservatives" that comment or post here.

[DaveC]

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

[Gromit]

Sebastian: There is a huge qualitative difference from a nominee being exiled to committee when the President's party does command a majority in the Senate and when he does. The reason why judicial nominees could be lost in committee was because the committees were controlled by the opposition--i.e. they reflected in small a larger control of the Senate. That is absolutely not true now.

I'm going to go out on a limb and bet that the drafters of the cloture rule took into account the possibility that a measure with enough votes to pass an up or down vote might not necessarily meet the threshold for cloture. In other words, so what? Are not both scenarios you describe perfectly consistent with the Senate rules as they stand? And does the distinction above in any way vindicate the claim that all nominees deserve an up or down vote?

[Sebastian Holsclaw]

The point of noting that nominees vanish into committee is to minimize the new balance of power that Democrats are attempting to strike with the filibuster. Yes, it was not completely unheard of for a nominee to vanish in committee--when the President's party didn't control the Senate and when the President's party hadn't gained Senators in back to back elections.

Filibustering has not traditionally been used against large numbers of court nominees. Filibustering has a long and ugly tradition, but it wasn't typically employed against nominees. Typically much more deference has been given to nominees. Rehnquist was elevated to Chief Justice after much wrangling by a Democratic controlled Senate. That is Rehnquist, one of the most conservative judges of this century. Scalia, whose very conservative record was already well established was confirmed by a Democratic controlled Senate with 98 votes for confirmation.

The idea that a minority party ought to regularly block judicial nominations is not an established concept. The idea that filibustering nominees on a regular basis is good for government is a new policy.

[DaveL/Sibling Neutron Bomb of Patience]

The point of noting that nominees vanish into committee is to minimize the new balance of power that Democrats are attempting to strike with the filibuster. Yes, it was not completely unheard of for a nominee to vanish in committee--when the President's party didn't control the Senate and when the President's party hadn't gained Senators in back to back elections.

Sebastian, my recollection is that many of the Clinton nominees who were blocked in committee were generally thought to be capable of winning up-or-down votes if they'd gotten to the floor, and that a number were finally confirmed by significant margins after very long delays. So unless you're arguing that the leadership of the party that controls the Senate should be able to block nominees that have majority support, but the minority party should not, I'm not sure the argument holds up.

OT: the Unitarian Jihad name generator is very cool!

[Anarch]

The point of noting that nominees vanish into committee is to minimize the new balance of power that Democrats are attempting to strike with the filibuster.

A non-zero one? Cool.

The idea that a minority party ought to regularly block judicial nominations is not an established concept.

And it's not happening here.

The idea that filibustering nominees on a regular basis is good for government is a new policy.

And it's not happening here.

[Sebastian Holsclaw]

How do you characterize what is happening here?

[Gromit]

Sebastian Holsclaw: The point of noting that nominees vanish into committee is to minimize the new balance of power that Democrats are attempting to strike with the filibuster. Yes, it was not completely unheard of for a nominee to vanish in committee--when the President's party didn't control the Senate and when the President's party hadn't gained Senators in back to back elections.

No, the point of noting that loads of nominees have been killed in committee or by other non-majoritarian procedural means is to give the lie to the "every nominee deserves an up or down vote" mantra. A "new balance of power" is what we will have if Frist decides to go ahead with his plan to institute a deliberate misreading of the Senate rules. The precedent set will be that a naked lie agreed upon by 50%+1 is, for all intents and purposes, not a lie at all.

Filibustering has not traditionally been used against large numbers of court nominees.

And out come more qualifiers. Never used against nominees that had majority support. Never used against so many nominees at once. You are tailoring your standards for "precedent" to fit your desired conclusion.

The idea that a minority party ought to regularly block judicial nominations is not an established concept. The idea that filibustering nominees on a regular basis is good for government is a new policy.

Where does this "regularly" business come from? Have not the Democrats allowed the vast majority of Bush's nominees come to a vote? They picked ten of what they saw as the most extreme and unqualified nominees, and said "If you want to bring these to a vote, you'll have to invoke cloture". How does this constitute a new policy of regularly blocking nominees?

[Sebastian Holsclaw]

"No, the point of noting that loads of nominees have been killed in committee or by other non-majoritarian procedural means is to give the lie to the "every nominee deserves an up or down vote" mantra."

I don't understand. Do you really see no difference between a majority party killing a nomination in committee, and a minority party blocking an up and down vote?

"Never used against nominees that had majority support. Never used against so many nominees at once. You are tailoring your standards for "precedent" to fit your desired conclusion."

Hilzoy's entire post is equating every single possible method of providing an obstacle to a nomination to a filibuster. This whole argument is clearly about choosing the standard to fit the desired conclusion. Argue why the standard is wrong. Liberals have to expand the discussion from filibuster to other forms of resisting a nomination because this use of the filibuster used to be unheard of. Don't pretend that I'm the only one doing it. Hilzoy's standard is odd because it confuses actions of majority parties with minority party actions. Blue slip procedure was a minority party action and thus appropriate in this context. Losing in committee to the majority party--not so much. Failure to distinguish between such cases, especially after I have pointed them out, is just ignoring my argument. And you can feel free to do that. But ignoring my argument AND getting puffed up with pompous indignation is just annoying though it is getting completely typical on this site.

[Jesurgislac]

Sebastian: Do you really see no difference between a majority party killing a nomination in committee, and a minority party blocking an up and down vote?

Perhaps you would explain what the difference is? As I see it, the end result is the same in both cases: the judical nominee does not get a full vote in the Senate. The difference in tactics is presumably because the minority party in the Senate does not have the power to kill a nomination in committee. I am not being sarky: if the goal is (as apparently Republicans are saying it is) that all nominations shall have an up and down vote in the Senate, what difference does it make whether a nomination is blocked in committee or blocked by filibuster? Both are within the rules. What's your perception of the difference?

[DaveL]

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

[liberal japonicus]

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

[CharleyCarp]

Let's step back and look at the bigger picture. What's so wrong with forcing a President to nominate people who can get 60 votes? Conservative Republicans could be named for each of the current vacancies who could do so -- 90 votes most likely. Judges who would easily win Sebastian's vote, on the merits not just as deference, were he in the Senate.

I'm not going to say that sending up nominations where the primary purpose is political rather than judicial (or patronage) is unprecedented, but even if it's gone on before, it need not go on now.

Even if one doesn't think that the original nominations of most of the disputed judges was political -- and I am sure it was for at least one -- their re-nomination was made specifically for the purpose of drawing a filibuster.

[Don Quijote]

Who is the Senate Majority?

But do Senate Republicans truly represent the majority of voters?

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

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

[Dantheman/The Sword of Love and Mercy]

Sebastian,

"I don't understand. Do you really see no difference between a majority party killing a nomination in committee, and a minority party blocking an up and down vote?"

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

Great post hilzoy, and I love my Unitarian jihad name.

[KCinDC]

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

[Dantheman/The Sword of Love and Mercy]

Sebastian,

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

[KCinDC]

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

[Dantheman/The Sword of Love and Mercy]

"And it only applies to judicial appointments, or maybe just circuit court judges and above"

No, only cicuit judges. Supreme Court justices can be filibustered (Fortas).

[Donald Johnson]

I'm not real enthusiastic about that notion that Democratic senators represent the majority of the people because of state populations. You could turn around and say that Bush got the majority of the popular vote and so his nominations should be taken more seriously because of that. Anyway, we have the rules we have and there are more Republican senators.

On Hitler comparisons, I've violated Godwin's Law myself, though only in comparing a small genocide (East Timor) to a much larger one (the Holocaust). I didn't object much when prowar types compared Saddam to Hitler--they seem similar to me, though Hitler had much more power and killed many more people. I don't doubt that if Hitler had aimed his aggression a little more carefully, somehow contriving to attack the Judaeo-Bolshevik menace in the East, maybe with Poland's help, he could have been a loyal American ally, just as Saddam was until he miscalculated the kind of atrocity that might upset us--invading another country without justification.

Nazi analogies when we're talking about Senate rule debates are way over the top, but hard to get worked up over for precisely that reason. The people making them are just being stupid. They're only dangerous if there are people listening who might take them seriously. People so lacking in critical thinking skills they might blindly follow a demagogue no matter what he says. People who don't really care about democratic norms. People with tendencies not unlike what we saw in the 1930's. I am, of course, referring to the followers of Father Coughlin.

The main problem I have with violators of Godwin's Law is that they show a deplorable lack of American pride. We've got plenty of demagogues and villains and atrocities in our past, include small-scale (in bodycount) genocides and fair-sized ethnic cleansings and so forth. So why outsource one's over-the-top comparisons to Nazi Germany? Buy American.

[cleek]

...anything else?

evidence suggests political affiliation of the majority party is a factor, as well.

[CaseyL]

The penumbra is getting *very* rococo, KCinDC. It's getting to be like those Obscure Statistical Anomalies of Monday Night Football fame.

MNF: ""No team down by 13 points in the final quarter has ever scored two touchdowns within five minutes when the quarterback was a 5th round draft choice from Iowa."

GOP: "No judges have ever been denied an up and down vote before (by filibuster), once the nomination left committee (because we don't let Democrats place holds in committee anymore) except for Abe Fortas (who doesn't count) in deference to the President (unless he's a Democrat). The Democrats just don't want to confirm Bush's judges (except for the 201 of them they already have confirmed). This is unprecedented obstructionism (the 60 of Clinton's judicial nominees we kept from ever seeing the light of day don't count, either)."

[carpeicthus]

Sebastian, please explain how an abstract political concept advantageous to you, such as "minority party" meaning some sort of subaltern whelp instead of just the people with fewer votes, which is what this whole cloture and filibuster thing is about in the first place, has real meaning within the relevant rules of the Senate, where it does not appear.

Perhaps if you could explain this new theory of American government to the parliamentarian, the GOP wouldn't need the nuclear option at all.

[Slartibartfast]

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

[carpeicthus]

die, italics.

[carpeicthus]

Italics are for Nazis!

[Slartibartfast]

Oh, and shockingly, my UJ name is:

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

Scout's honor.

[Gary Farber]

"Liberals have to expand the discussion from filibuster to other forms of resisting a nomination because this use of the filibuster used to be unheard of."

Tell ya, what, Sebastian. We'd have to pretend to be able to speak for respective sides of the Senate to make this bargain, but let's pretend. How about the Democrats agree to, in practice stop filibustering judicial nominees while they're in the Minority, the Republicans bind themselves equally to do the same for at least an equal number of years when they return to the minority, and both sides agree to go back to the Senate tradition that Orin Hatch unilaterally wiped out, which is that no nominee will be voted on without a blue slip from every Senator?

Who could object? You're not going to claim that the Democrats invented the way the Senate worked until Hatch took it upon himself to change that, are you, or that there was something partisan about it? As you say: "Blue slip procedure was a minority party action and thus appropriate in this context." Deal?

[Gary Farber]

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

This is a remarkably pointless point. Newsflash: the Senate isn't democratic in the way the House is. Film at eleven. Also just in: U.S. a republic, not a pure democracy. Constitutional structure conceived in 18th Century!

[Slartibartfast]

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

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

[freelunch]

Retraction, what retraction? That's a retraction? And why not an apology?

I'm not particularly prone to cut Senator Santorum any slack since he seems to be one of those people who is most annoying to me, with his combination of self-righteousness and an apparent willingness to skate as close as possible to the boundaries of ethics, but still, a retraction should be a bit more than the equivalent of 'just kidding' after an offensive joke.

[I don't recall seeing the details of what Byrd said, or why Santorum took him to task about it, but Byrd, with his history, should be particularly careful about offensive comments, even more so than the righteous wing of the Republicans.]

[KCinDC]

Hey, at least he didn't say "I apologize if anyone was offended."

[Sebastian Holsclaw]

"Sebastian, again, the idea that the majority party (or, more accurately, the leadership/committee chairmen of the majority party) is entitled to block nominations regardless of whether those nominations have the support of 51 Senators is not so obviously different from a filibuster as you seem to think."

That isn't what I'm talking about. When a majority party blocks someone in committee it would be not at all surprising to find that they would have been doing the same on a full vote. (We can never tell 100% for sure because full votes are different than committee votes on anything, but the inference remains strong nonetheless). Things routinely lose in committee that would also lose on a floor vote. The same is not true of filibusters. A vote tends to be filibustered only when those filibustering it are pretty sure that they would lose on a floor vote.

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

[liberal japonicus]

My UJ name is
Brother Sword of Infinite Compassion

Which I am quite fond of. However, I couldn't resist checking out the Reformed Unitarian Jihad and they said I was
Brother Spear of Kind Love

Which sounds a lot sexier, but I'm not sure how the missus would take to it.

I also had a bit of a shock when the RUJ web page came back with
If you like this name, you can cut and paste the following HTML code into your blog/LJ:

It took me a minute to realize that LJ meant Live Journal and not Liberal Japonicus.

[Dantheman/The Sword of Love and Mercy]

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

As is your failure to acknowledge that many of the judges which were defeated during the Clinton administration were the result of blue slips or holds by Committee Chairs. In other words, actions by a single Senator, which by no means implies that the majority of Senators support the blocking.

[KCinDC]

Sebastian, are you arguing that these filibusters are a bad idea, or that they're unconstitutional? If they're just a bad idea, then there's a mechanism to change the rules to prevent them, but it requires a two-thirds vote of the Senate.

If they're unconstitutional -- the claim required for the 50%-plus-Cheney option for throwing out the rules -- then could you say what part of the Constitution is being violated and how it specifies that various other vote-blocking mechanisms and uses of the filibuster mentioned above are okay?

[Slartibartfast]

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

[liberal japonicus]

And given the new extension to my handle (the Infinite Compassion one, not the Love Spear one) I will only quote this without making any direct comment

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

Of course, it is certain that the majority party would all vote the party line, and the Republicans have never had to do anything like, I don't know, keep unprecendented amount of time in order to force members of the caucus to vote correctly. Of course, this was the House and this would never happen in the Senate, I feel certain.

[123concrete]

Santorum was probably just seeing if the media and hypocritical Democrat's would let him off the hook the same way they let Robert Byrd.

Sen. Rick Santorum of Pennsylvania, a member of the Republican leadership, said in a statement, "Senator Byrd's inappropriate remarks comparing his Republican colleagues with Nazis are inexcusable."

Looks like he was wrong. Who wants to take bets there will be calls for an apology by the end of the day? Probably from Byrd himself.

Many think it is fine that Reid referred to the President of the U.S. as a loser in front of a bunch of high schoolers. This really shouldn't be that big of a deal either.

[Sebastian Holsclaw]

"As is your failure to acknowledge that many of the judges which were defeated during the Clinton administration were the result of blue slips or holds by Committee Chairs. In other words, actions by a single Senator, which by no means implies that the majority of Senators support the blocking."

How long were Republicans a majority party in the Senate? There is a difference between a party in power denying in committee what they could deny on the floor and a party not in power denying by filibuster what they could not deny in committee or on the floor. You and almost all the liberals in this discussion apparently don't care about such a distinction. Fine. But you aren't dealing with my argument, you are merely dismissing it and getting high and mighty about my interest in the allegedly useless distinction between having a majority in an elected government and not having a majority in an elected government.

There is a difference in situation between a President whose party is different from the majority party in the Senate and one who shares a party with the majority party in the Senate. You seem to want to pretend that it is the same situation. It is not super-shocking when the President can't get some nominees through a Senate controlled by the other party.

It is rather surprising when a President can't get through a large number of nominees through a Senate controlled by his Party unless there are significant defections from his Party for some reason or another (like may happen on Social Security for instance).

In my view, a complete failure to note any useful difference between the two cases is a rather glaring failure to address what is happening here. When a committee chair acts, he is doing so as an extension of the fact that his party controls the Senate. There would be another chairman if the other party controlled the Sentate. The filibuster is almost by definition an act against the majority of the Senate. There is a qualitative distinction between acts that are done as an extension of majority power and those done in defiance of majority power.

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

[KCinDC]

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

[Dantheman/The Sword of Love and Mercy]

"There is a difference between a party in power denying in committee what they could deny on the floor and a party not in power denying by filibuster what they could not deny in committee or on the floor. You and almost all the liberals in this discussion apparently don't care about such a distinction."

First, there's also a difference between both of those cases and the case where a single blue slip blocks a nomination from even having hearings, so it cannot be determined whether such a nominee could prevail or whether any significant segment of the majority opposed the nomination. Your continued failure to even acknowledge this speaks volumes.

Second, as noted in my 9:13 AM post, Republicans used single Senator holds even when they were in the minority.

[Gary Farber]

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

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

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

Obviously.

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

There's a difference, but what's the point? Since when has the Senate supposed to guarantee floor votes on everything? Is that, in fact, the standard you want? Or do you just willfully want President Bush to be able to have every single judicial nominee have a floor vote, which, purely coincidentally, means they'll all be confirmed under present circumstances, because, boohoo, seven (or ten, if you prefer), whole nominees might be rejected, whereas rejecting 65 (or 64, depending on which account) Clinton nominees, hey, that's just politics? Nothing willful there!

Myself, what I marvel at, is the short-term outlook of Republicans here. Do you really believe the Senate will never be in Democratic hands, with a Democratic President, ever again? Will you still be applauding the elimination of minority rights in the Senate then? Supporting, say, President Hillary Clinton's ability to install as many "radically liberal" judges and Supreme Court Justices as the heart desires? Is that really what you want?

Incidentally, what argument are you making regarding judicial filibusters that doesn't apply to all Presidential appointments, and to all bills?

Incidentally, what did you have to say about the Republican filibuster of H. Lee Sarokin in 1994, or the Republican filibuster of Richard Paez in 1999, or the Republican filibuster of Marsha Berzon? Has the Republican Party decided that Stalinist techniques of rewriting history are the way to go in ignoring their own filibusters? Was Senator Bob Smith of New Hampshire a Democrat when he decried?:

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

[freelunch]

Sebastian-

Aside from the fact that Republicans have filibustered nominees, both when in the minority and when in the majority, are you implying that Senators in the minority party have never been able to stop a judicial nominee by other methods before those methods were abolished by the Republicans?

The sensible 'compromise' is to roll back the rules so filibuster isn't the only possible choice for the minority. I don't think any judicial nominee should be able to get onto the bench without some support, however grudging, from the minority.

[lily]

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

[Gary Farber]

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

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

So, yes, absolutely, there's a "qualitative distinction" between the majority and the minority in the Senate. So bloody what?

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

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

[liberal japonicus]

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

Well, I'm from Mississippi, and I took it to mean that he was addressing everyone who posted on this thread who didn't completely and totally agree with him, which seems to be, well, almost everyone.

I realize that part of this is the fact that the commentariat here leans left, but this trying to wrap up everyone's comment with single post and then being as bloodyminded as possible about how that post answers everyone's questions really contributes to rising temperatures here imho. I realize that there are some sharp elbows, but comments like the one I mentioned and "You and almost all the liberals in this discussion apparently don't care about such a distinction" really just leave a bad taste in my mouth, especially coming from one of the front page posters. I'm sorry, but if I made some offhand remake about almost all the conservatives on this site, I would be (rightfully) jumped on.

Given the fact that Seb feels that Bolton shouldn't be confirmed, (which I assume means that he shouldn't have made it out of committee), I don't understand this whole line of argument. If Bolton does get confirmed, will that mean that those opposing him were wrong, and Seb will have to get his priorities rearranged? Or does he not count because he's not a judge? Plus the fact that the whole argument is the complete opposite of a 'conservative' argument. But since it's looking to Seb that I'm and everyone else is 'wilful' on this, (and since Carnac's are only for conservatives to bestow on liberals) I guess I just have to give up. Night all

[CharleyCarp]

lily, I don't like the judges either, but I think it's absolutely incorrect to say that they are rarely defended on the merits. I haven't listened to all that much of the Republican floor speechifying in the current filibuster (and didn't all that much in the November 2003 version) but much of what I have heard both times has been merits defense of the nominees.

As for the rest, the question for Sebastian is whether he thinks there is any place at all for a filibuster rule, or whether the Senate should proceed, always, like the House. (I apologize if he's given an example of what he thinks should be filibustered, and I've missed it.)

The idea that the minority should have leverage with respect to a declaration of National Turnip Week but not wrt a lifetime appointment to the federal bench is not comprehensible to me.

[hilzoy]

Sebastian: "Hilzoy's entire post is equating every single possible method of providing an obstacle to a nomination to a filibuster."

With respect, no. My entire post is about Sen. Santorum's hateful remarks. One point about them is that the factual claims that supposedly underlie his Nazi comparison are false. One, though not the only, subpoint of that is: the Democrats' actions are not unprecedented. Others include: there is no rule of the sort Santorum claims there is, etc.

My actual argument against the nuclear option is in my earlier post (Going Nuclear.) Its main point is not about whether or not there's a precedent for what the Democrats are doing, but about the fact that the Republicans are proposing to break the rules. If there's no precedent for what the Democrats are doing, then the unprecedented thing they're doing is still within the rules. The Republicans are contemplating what I see as the quite different step of throwing the rules out the window. There are ways of changing the rules, and the Republicans are not proposing to use them.

All that said, I disagree with you about the unprecedented nature of all this. For one thing, and I may be misunderstanding you here, you seem to me to assume that there's a lot of party discipline in the Senate. This is true now, at least as regards the Republicans, but it has for the most part not been true in the past. (Especially when Senate chairs were given by seniority: then someone could get a chair and use it to block whatever he wanted, whatever his party thought. He didn't become chair because anyone thought he'd be particularly good at it, or because his views were in line with the party, or whatever; all he had to do was endure long enough, and he'd be in a position to prevent anything in his committee from coming to a vote. Some chairs regularly drove their parties to distraction in this way.)

Historically, Senators have been a lot more inclined to insist on their personal fiefdoms and prerogatives, and on the independence of the Senate, and so not to just go along with what their party demanded. Also, there were a whole panoply of ways of blocking nominations other than by voting them down in committee. As noted, Committee chairs could never bring them up for a vote, there were blue slips, etc. But I also think I read somewhere, but I can't remember where, that traditionally when all the members of the Judiciary committee from the minority party voted against a candidate, that candidate was by tradition not moved forward. If anyone can tell me whether this is true or false, I'd be grateful. -- Of course this only worked when Senators didn't vote straight party lines. But it seems to me to be an excellent tradition to have, though since it's a tradition and not a rule, I wouldn't have the same kinds of objections to doing away with it that I have to the nuclear option.

[Jesurgislac]

Sebastian: A vote tends to be filibustered only when those filibustering it are pretty sure that they would lose on a floor vote.

Thank you for answering my question. I understand the distinction you're making now.

[DaveL]

A vote tends to be filibustered only when those filibustering it are pretty sure that they would lose on a floor vote.

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

[Anderson]

A fifth objection to Santorum's comment is that it makes no sense:

It's the equivalent of Adolf Hitler in 1942,saying, "I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine."

Who was bombing Paris in 1942?

[Bernard Yomtov]

There is a difference between a party in power denying in committee what they could deny on the floor and a party not in power denying by filibuster what they could not deny in committee or on the floor. You and almost all the liberals in this discussion apparently don't care about such a distinction. Fine.

In Frist's interpretation of the Constitution there isn't any difference. Not a dime's worth. He keeps insisting, (as does Hatch - incredible) that there is some sort of Constitutional requirement that all nominees get a floor vote. He's lying, of course, and unless I missed something it seems you are unwilling to endorse his position.

The claim that the majority only kills nominations in committee that wouldn't pass on the floor is wrong. Of course some nominations would pass on the floor. Senators do vote across party lines. (And if you really think the argument holds then it makes a mockery of the claim that "if these judges are so extreme there should be some Republicans who oppose them")

Committee rejection amounts to the same thing the filibuster does - it denies a floor vote. The procedures are different but the outcome is the same - a violation of Frist's imagined Constitutional requirement.

[hilzoy]

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

[123concrete]

Lily,

Do you think the ABA is wrong to give a qualified rating to Bush's nominees?

[Gromit]

Gromit (May 20, 2005 02:42 AM): In other words, so what? Are not both scenarios you describe perfectly consistent with the Senate rules as they stand? And does the distinction above in any way vindicate the claim that all nominees deserve an up or down vote?

Sebastian Holsclaw (May 20, 2005 10:49 AM): I would be thrilled to discuss the importance or lack of importance of such a qualitative distinction, but I can't even get to the point where people notice such a distinction.

Maybe you missed the quoted passage from my comment above. You certainly didn't answer my questions, which were intended to start the very discussion you claim would thrill you. The ball is in your court to explain just why we should care about that distinction for judicial appointments (and why we shouldn't care for legislation).

There is a difference between a party in power denying in committee what they could deny on the floor and a party not in power denying by filibuster what they could not deny in committee or on the floor. You and almost all the liberals in this discussion apparently don't care about such a distinction.

Speaking for myself, bingo! I don't care and neither do the Senate rules. They defer neither to the majority party nor to the Presidency on the question of ending debate, nor does precedent require such deference. This is evidenced by the very existence of a higher requirement for cloture and the fact that cloture has been denied many times throughout the history of the Senate for measures that had majority support. Perhaps you wish otherwise, but, as has been pointed out repeatedly, there is a provision for rule-changes, and the Republicans are free to build support for such a measure. Since they don't now have the votes to amend the cloture rule, the Republicans have many options in front of them: convince enough Democrats to vote for cloture, build support for a rule change, focus on winning more seats in 2006. But one option they can't employ in good faith is the subversion of the Senate rules.

[Blue Neponset]

Sebastian,

Thanks for continuing to argue about this issue.

I still don't understand how majority support is determined. If the Republicans want to amend the Senate rules because they believe all nominees with majority support deserve an up or down vote they should be able to define majority support.

I don't believe that is too much to ask and I haven't yet found a definition of majority support. Can you or anyone else define that term or point to a page that does define it?

[Jeremy Osner]

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

[freelunch]

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

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

Emphasis added.

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

[Gary Farber]

"If the Republicans want to amend the Senate rules because they believe all nominees with majority support deserve an up or down vote they should be able to define majority support."

Huh? What part of "majority" requires definition? A quorum, which absent dead Senators, is 51. No one is debating that.

[Gary Farber]

"All other things being equal, a pragmatic judge will be superior to a dogmatic one."

This isn't terribly useful as a basis for arguing in favor to or opposition to a nominee, because no one conceives of the person they favor as being "dogmatic." It's about as useful as favoring smart judges over dumb ones.

[freelunch]

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

[Blue Neponset]

Gary Farber: "Huh? What part of "majority" requires definition? A quorum, which absent dead Senators, is 51. No one is debating that."

If you are saying majority support means 51 senators will vote or will agree to vote yes on a judicial nominee, please say so.

If that is the position, I don't understand how this is determined without a whip count from both sides or a floor vote. That is why I don't understand what majority support means. I hope that is clearer.

[Slartibartfast]

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

[Gary Farber]

"Given that, why don't the Republicans just propose a rule change to exclude judicial nominations from filibuster?"

Because they don't have the votes to pass that, as has been infinitely discussed.

It would possibly be helpful to read the material previous linked.

Rule 5 is very clear, by the way: "2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."

[DaveL]

Huh? What part of "majority" requires definition? A quorum, which absent dead Senators, is 51. No one is debating that.

Gary, if I'm understanding Sebastian's argument correctly, he's say that its OK for the majority party, or members thereof, to block nominations from coming to the floor even if there would be 51 votes in favor of the nomination on the floor, and that that's completely different from the minority party's using the filibuster to block nominations that could command 51 votes. Sebastian, please speak up if I'm misunderstanding you.

[freelunch]

Slart - Not enough votes to change the rules? Tough. That's part of the rules of the game.

Frist is saying, "I don't have the $400, for Boardwalk, but I'll take it anyway and not pay for it."

Yes, I know he doesn't have the votes to change Senate rules. That is why the question of a filibuster should not be a problem. The rules allow a filibuster. Frist doesn't have any right to stop all filibusters by himself or even with 50 votes, he only has the right to try to stop each filibuster by cloture as it arises.

Gary - I was commenting on the ABA and its method. Like you, I don't see how they can say in an objective fashion that someone is unqualified because they are too dogmatic even though I am convinced that dogmatic judges are inferior to pragmatic judges.

[Slartibartfast]

Slart - Not enough votes to change the rules? Tough. That's part of the rules of the game.

Well, you did ask.

[bob mcmanus]

"Do you really believe the Senate will never be in Democratic hands, with a Democratic President, ever again?"

I have not, in fact, recently heard partisan Republicans discussing this as a possibility. I am not to read their minds as to what they think or believe.

[carsick]

Nearly every way to stop a nomination other than the fillibuster has been abolished by the republicans (Blue Slip anyone?)

"In the years that Republicans controlled the Judiciary Committee, the preferred method of "rejecting" scores of judicial nominees was to deny them Committee hearings and votes. More than a dozen of President Clinton's Circuit Court nominees received the American Bar Association's (ABA) unanimous "well-qualified" rating, but their nominations were defeated because their hearings were rejected by Republicans.

The following Circuit Court nominees from 1997, 1998, 1999, and 2000 are in this category: H. Alston Johnson (5th Circuit), James Duffy (9th Circuit), Kathleen McCree-Lewis (6th Circuit), Enrique Moreno (5th Circuit), James Lyons (10th Circuit), Robert Cindrich (3rd Circuit), Stephen Orlofsky (3rd Circuit), Andre Davis (4th Circuit), James Beaty (4th Circuit), and J. Rich Leonard (4th Circuit).

Allen Snyder (D.C. Circuit), who was also rated "well-qualified" by the ABA, received a hearing but was not allowed a vote by the Republican-controlled Committee.

More than a dozen other Circuit Court nominees with "partial well-qualified" or "qualified" ratings were also defeated by Republicans who blocked their hearings or votes, including Helene White (6th Circuit), Jorge Rangel (5th Circuit), Robert Raymer (3rd Circuit), Barry Goode (9th Circuit), Christine Arguello (10th Circuit), Elizabeth Gibson (4th Circuit), Elana Kagan (D.C. Circuit), James Wynn (4th Circuit), Bonnie Campbell (8th Circuit), Kent Markus (6th Circuit), and Roger Gregory (4th Circuit).

Dozens of District Court nominees from 1997, 1998, 1999, and 2000 with unanimous "well-qualified" or "qualified" ratings also were blocked by Republican refusal to give them hearings or votes. In all, nearly 60 of President Clinton's judicial nominees were defeated through Republican blocking of hearings and votes, despite their ABA ratings. ... While only two of President Bush's judicial nominees have been defeated in open votes, nearly 60 of President Clinton's judicial nominees were defeated through secret, anonymous holds and other secretive, non-transparent Republican tactics."

[carsick]

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

[carsick]

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

[vida]

"Do you really believe the Senate will never be in Democratic hands, with a Democratic President, ever again?"

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

[Slartibartfast]

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

[hilzoy]

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

[Anarch]

Sebastian: How do you characterize what is happening here?

In the interests of not piling on, let me note that the word "regularly" in both citations is horrifically misplaced. Threatening a filibuster on 7-10 appointments while passing without furore -- in fact, almost without comment -- over 200 other judges does not "regularly blocking", nor filibustering on a "regular basis".

[CharleyCarp]

Vida, I'd agree, except that we're dealing in human institutions. There will always be Republican senators from "blue" states -- like Maine or Oregon -- and Democratic senators from "red" states like Montana and New Mexico. And of course, the color of a state depends on the election. Maryland has a Republican governor, and Virginia a Democratic governor.

Incumbents fare well, regardless of party. So you'd have to chart out where the open seats are going to be.(Not to say that Santorum couldn't be defeated, for example.)

* * * *

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

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

[CharleyCarp]

I'm reposting that last on the other thread.

[vida]

"There will always be Republican senators from "blue" states -- like Maine or Oregon -- and Democratic senators from "red" states like Montana and New Mexico."

True, but I think it is safe to say that there are strong contrary tendencies. Pretty hard to win as a Democrat in Oklahoma, even if your opponent is a near nutcase. Anything is possible, but statistically I doubt it looks good for Democrat control of the Senate over the long haul. There is probably some research on the subject somewhere, but, unfortunately, its back to paying work.

[Sebastian Holsclaw]

"Gary, if I'm understanding Sebastian's argument correctly, he's say that its OK for the majority party, or members thereof, to block nominations from coming to the floor even if there would be 51 votes in favor of the nomination on the floor, and that that's completely different from the minority party's using the filibuster to block nominations that could command 51 votes."

My argument is that is losing in committee is a fairly good indicator that you wouldn't be doing well on the floor, while use of the filibuster is ONLY an issue if you definitely don't have the floor votes. Committees are the designated 'experts' (scare quotes intentional). They are the ones who deeply investigate the claims and issues of whatever their committee deals with. It would be odd (though not logically impossible) to have a nomination die in committee if the person could have gotten a noticeable majority on the floor. (The 51-49 votes, unless strictly on party lines are of course kind of a crap shoot for marginal nominees).

"Threatening a filibuster on 7-10 appointments while passing without furore -- in fact, almost without comment -- over 200 other judges does not "regularly blocking", nor filibustering on a "regular basis"."

The Democrats are both regularly blocking and over-using the filibuster. Judges like Pickering got smeared. Others get hit by the filibuster. The Democrats aren't JUST filibustering. They are obstructing all over the place. But frankly I think the Republicans are going about it wrong. Make the Democrats actually filibuster. I want to use TV spots of Boxer reading from a telephone book to fill 3 hours of debate. I want to see Byrd filibuster so we can run ads quoting his more famous anti-Civil Rights filibuster and draw fun parallels.

Though to be honest, I think it is a sign of the horrific state of our legal system that anyone would want to bother filibustering judges. Judges aren't supposed to be that important. The fate of huge numbers of social policy questions are not supposed to turn on the whims of judges. No one in 1910 would have ever guessed that people would think that nominating judges was one of the most important things that a President could do, or that it was one of the more important things that Senators could fight about on a regular basis. The state of the judiciary as the arbiter and creator of new rights is a deep perversion of the system--and it is a perversion which is poisoning the politics of our country.

[hilzoy]

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

[carsick]

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

[DaveL]

My argument is that is losing in committee is a fairly good indicator that you wouldn't be doing well on the floor, while use of the filibuster is ONLY an issue if you definitely don't have the floor votes. Committees are the designated 'experts' (scare quotes intentional). They are the ones who deeply investigate the claims and issues of whatever their committee deals with. It would be odd (though not logically impossible) to have a nomination die in committee if the person could have gotten a noticeable majority on the floor.

Sebastian, I agree with parts of your last post, but I think the stuff quoted above is just factually wrong as an account of how nominations got killed during the Clinton administration. Refusing to schedule committee hearings, blue slips, holds, etc. were used to effectively kill a bunch of nominations, and a few that survived such tactics ended up being confirmed when they finally got floor votes.

Just to pick a couple of examples I know personally (former colleagues): one was appointed to the District Court by Clinton, strongly supported by both home-state Senators, was held up for 2 1/2 years on various procedural BS before finally being confirmed. The problem was that the Judiciary Committee voted her nomination down, it was that it just kept getting put off, and IIRC some of the delay was from holds placed by non-Judiciary Committee Senators. The other person was nominated by Bush to the Court of Appeals. He got the grudging support of our two D Senators despite considerable resentment of the fact that Senate Rs had killed Clinton's nomination for the seat by setting it aside until after the election. He was confirmed in 10 months, despite the fact that 9/11 happened between his nomination and confirmation. They're both good people and good judges. But the process by which they got to where they are doesn't fit your picture very well.

[DaveL]

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

[hilzoy]

And DaveL: don't forget Rule 4 of the Judiciary committee: my discovery of the day, and what occasioned the latest post. The fact that until 2003 a nominee couldn't get out of committee if the minority was unanimously opposed means that Sebastian's claim:

"losing in committee is a fairly good indicator that you wouldn't be doing well on the floor"

is, while understandable, false.

[dmbeaster]

My argument is that is losing in committee is a fairly good indicator that you wouldn't be doing well on the floor, while use of the filibuster is ONLY an issue if you definitely don't have the floor votes.

This is why your argument is nonsense. You define "losing in committee" to include all of the non-vote procedural tricks for denying committee votes on Clinton nominees. Many of these nominees prabably would have made it out of committee had a vote been held, and would have been approved on the floor by majority vote even if the committee sent them on a la Bolton. Republican tactics, with Hatch in charge, assured that no vote was ever taken in committee, and hence no action -- for years in some instances.

There is nothing unique about the current filibuster situation -- and ample Republican lies about how "unique" it is. It is sad to see you vent them without any self-awareness of their phony quality.

I also second the comments above that this is about Republican intransegence regarding the most extreme of their nominees. What is truly unique about this situation is the demand of the majority party to purposefully appoint the most extreme activist judges despite the objections, and force them through no matter what. From what I have learned, that is pretty unique and a huge break from tradition.

For all of the complaints about "activist" judges ruining the courts, that is exactly what the Pepublicans seek to do -- they just want to ruin it in their favor. Why not appoint moderate conservatives that disavow "activism" and actually practice what they preach -- there are ample candidates available if that was the agenda.

[Anarch]

The Democrats are both regularly blocking and over-using the filibuster. Judges like Pickering got smeared. Others get hit by the filibuster... They are obstructing all over the place.

1) Who, beyond the judges currently at issue, got hit by the filibuster?

2) Democrats didn't "block" Pickering, they said nasty things about him in order to make him politically unpopular. If that's your criterion for obstructionism, you'd better condemn the entire history of the Senate.

3) As with Bird Dog, I'm curious to know where you draw the lines between "obstruction", "opposition" and "doormat", especially in the context of a deliberately non-majoritarian institution like the Senate.

Make the Democrats actually filibuster. I want to use TV spots of Boxer reading from a telephone book to fill 3 hours of debate. I want to see Byrd filibuster so we can run ads quoting his more famous anti-Civil Rights filibuster and draw fun parallels.

I happen to agree that filibusters should be made live. That's the point of a filibuster, IMO: you trade looking foolish for the ability to stop what you regard as unacceptable legislation. If you end up looking too stupid than the issue at hand warrants, presumably your constituents will punish this by voting you out of office; if you take a stand of which they approve, they should forgive (or even laud) your foolish appearance by voting you back in.

Of course, if you're going to draw "fun parallels" with Byrd's anti-Civil Rights filibuster, it'd only be fair to show Republican filibusters of the past... including not only Republican judicial filibusters (what??? how could that BE??? this is the first time this has ever happennnnneeeeed!!!!), but also those racists like Strom Thurmond who left the Democrats to find a welcome home in the GOP. Talk about fun for the whole family!

[carsick]

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