« To My Government: Please Stop. | Main | For The Historical Record »

May 01, 2005

Comments

My thought on reading the column is here. To which I should add my agreement with Kos that Reid really stuck it to Frist here - the latter is apparently beholden to the fringe to such an extent that he can't take advantage of the Dems' (strategic?) cave. And I strongly disagree with Brooks (and I guess you) that a nuclear exchange would hurt my side anything like how it would hurt the Repubs. Unless you have the polarity mixed up here:

The Democrats must recognize that they lost the momentum on the issue with they rejected Frist's deal, and they're trying to get it back.

" . . .they deserve an up or down vote."

Does not this same logic apply to every piece of Senate business? Doesn't a bill reported out of committee "deserve" an up or down vote? Any nomination made by the executive? It seems to me that your position, von, is completely irreconcilable with the existence of the filibuster.

The proper answer for the country is now, and has been for 200+ years, the nomination of candidates who can get 60 votes. Grown-ups in the WH always take this into account, and purposely choosing nominees because they will not get 60 votes, to make a political point, does not make those nominees "deserve" anything.

It seems to me that your position, von, is completely irreconcilable with the existence of the filibuster.

It's certainly irreconcilable with the current rules, but it's absolutely reconcilable with the concept of a filibuster. A filibuster is a rule that the legislature lays down for how it legislates. The advise-and-consent rule on nominations, however, is not a piece of legislation. One can favor keeping the filibuster for legislation (its proper function), but disfavor it as part of the Senate's advise and consent function.

And, yes, I found the Republicans "secret holds" etc. on Clinton's nominees equally (indeed, in many respects, more) objectionable.

von, it is quite possible that a President nominate someone who is morally objectionable to the opposition. (Priscilla Owens comes to mind: she emphatically does not believe in judicial restraint.) In such case, why on earth would the opposition agree to "compromise" by allowing an up-or-down vote? James Madison had some thoughts on this. He'd have sided both with the Democrats now, and the Republicans 10 years ago.

Should this tactic be used excessively? No. But a 5% rate hardly seems excessive. That said, I agree that individual holds are a different matter. Avoiding tyranny of the majority by a rare and hard-to-invoke minority veto is one thing. Allowing a vanity veto by an individual is something else.

About the deal: according to me, the very best tactics to use in situations like this, in general, are those that reveal the nature of your opponent, for better or worse, by constituting a generous offer that that opponent, if reasonable, would accept. If your opponent accepts the offer, great: the offer should be genuine, and motivated in part by a real desire to get over whatever impasse is at hand. If not, that shows something about your opponent that's worth showing conclusively. And I think this was just such an offer.

About the claim that Frist "couldn't" accept it: nonsense. He couldn't accept it without the religious right getting angry, but that is not, by a long stretch, the same as "couldn't, period." At least, not if one has any interest in being an actual leader.

And about the base: it's probably true that the most extreme people on both sides are extreme enough that it's not worthwhile trying to figure out who is worse. (The remnants of the Trotskyites? Neo-Nazis? Why bother trying to construct some sort of scale to measure them by?) So to that extent I agree with you. And you're also right, of course, to say that one difference is that Republican extremists have a lot more sympathy from people in our government.

But I think there is one other difference, which may be what Kevin Drum had in mind. Namely: there are a lot more people on the right who are off in what I would think of as extreme and dangerous territory than there are people on the left. We have Ward Churchill, an obscure idiot; the right has Ann Coulter, who rather than seeming to excuse the slaughter of innocent office workers in the WTC, suggests that the terrorists should have aimed at the New York Times building and its innocent office workers instead. Significant chunks of the right also seem to be taking aim at the idea of an independent judiciary, and that hateful book about how the Supreme Court is ruining the country, whose title eludes me, doesn't just exist; it's a bestseller. Rush Limbaugh, Michael Savage, et al are out there spewing hatred constantly, and accusing me and Edward of being defeatist traitors who secretly sympathize with terrorists; again, there's nothing comparable on the left. So I think that while the extremes may be equally extreme -- in any case, I have no interest in figuring out whether they are or not -- the center of gravity on the right is much more extreme than it is on the left.

von--

"A filibuster is a rule that the legislature lays down for how it legislates. The advise-and-consent rule on nominations, however, is not a piece of legislation. One can favor keeping the filibuster for legislation (its proper function), but disfavor it as part of the Senate's advise and consent function."

Can you say a bit more about this? Is there any constitutional warrant for this distinction?

I had thought the filibuster was no more than one of the rules that the Senate has laid down for the conduct of its own business--it has no deeper roots than that in either the legislative case or the confirmation case. On the other hand, confirmation, like legislation, is part of "the Senate's own business" which it can lay down various rules for, e.g. the filibuster.

So I'm not sure where the legislation/confirmation asymmetry comes from.

the center of gravity on the right is much more extreme than it is on the left.

This seems indisputable (not that there won't be some who dispute it).

Incidentally, it's interesting that Reid's offer was not to filibuster the next Supreme Court nominee, rather than not to filibuster any future SC nominees. That's a clever move, since the next nominee is likely to replace Rehnquist, so the composition won't really change. It could backfire, if Rehnquist stays on, but it's not a bad gamble. Reid is from Nevada, after all.

Maybe Frist figured this out, or maybe he's just going to turn down anything, lest he end up with an earful of cider.

von- Hagel was on CBS this morning, and in reference to this debate over judges he made a comment eerily reminiscent of Brooks' overall point about taking back Senate prerogatives from the outside groups on both sides. I suspect there's a play afoot.

von: One can favor keeping the filibuster for legislation (its proper function), but disfavor it as part of the Senate's advise and consent function.

If the filibuster is proper for legislation, it's an even more appropriate tool for the advise and consent function for lifetime appointments to a co-equal branch of government whose checking and balancing function is essential to our system of government.

von: But I think Drum is deluding himself if he thinks that "conservative activist groups are way farther off the deep end these days than liberal ones"; both are pretty damn off.

Not to pile on or anything, but I'd like some kind of justification for this new bout of "a pox on both their houses", especially vis a vis hilzoy's point about center of gravity.

Hilzoy--

Not that this makes it one wit better, but I had thought Coulter's despicable line about the NYT building was made in reference to the OK city bombing, i.e. McVeigh, rather than the WTC bombing.

Tad -- you're probably right.

I wonder if what Reid promised was: we're not going to filibuster Bush's nominee because he's Bush's nominee, or because he opposes Roe v. Wade & is generally conservative--we won't do it unless we have a damn good reason.

If so, I'm totally cool with it. It's the right thing to do, especially given that it would probably be Rehnquist's seat. And it creates a situation where both Frist and Reid have an incentive to uphold their half of the bargain. If Reid breaks his word & allows the filibuster of a Supreme Court nominee without a damn good reason, Frist can go nuclear. If Frist goes nuclear three months after his and Reid's deal, then on top of the inherent risk, all bets are off for the Supreme Court.

But the idea that the Democrats should guarantee in advance that they will not filibuster the Supreme Court nominee no matter what--that would destroy any incentive Bush has not to nominate a complete extremist. I doubt Reid promised that. Jay Bybee, William Haynes--the Democrats cannot sit back and allow them to be confirmed to the Supreme Court.

Frist's "deal" was ridiculous, it offered nothing of value--and anyone not just reading the headlines or assuming that the Democrats and Republicans were automatically being equally reasonable would realize this. The provisions were:
1) filibusters of district court justices allowed
2) no filibusters of Supreme Court or Appeals Court nominees
3) 100 hours of debate on such nominees
4) this was what made it such a completely transparent non-offer: as a "concession" to the Democrats Frist's deal would end the ability to prevent judges from being blocked by the committees.

I realize that's what they did to Clinton's nominees, but that's even more reason not to gut the committee process now that we have a Republican President, on the vain hope that the rules won't be changed back again under a Democratic president and a Republican Senate minority.

Say Bush nominates John Yoo to the Ninth Circuit, and this is too much for Arlen Specter & Lindsey Graham.
Well, thanks to Frist's generous deal, he would probably be confirmed anyway.

As far as a floor vote on the Convention Against Torture Implementation Act or even an Intelligence Committee vote on Rockefeller's call for an investigation on CIA interrogation policies & on rendition--forget it. Anyone who believes this is about Bill Frist's sincere procedural commitment to allowing floor votes has their head...um, let me rephrase: is a complete sucker.

Three final thoughts:
1) an all out fight on this is risky for both sides, but if freedom's just another word for nothing left to lose--we have less to lose. And the polls are on our side by an impressive margin. And we have much, much, much better Senate leadership. And they're focused on the Senate Democratic caucus' effectiveness and (gasp) governing the country and reining in the worst excesses of the Bush administration, while Frist is focused on the 2008 Republican primary. And if you watched the Gonzales debate or the bankruptcy bill debate--the Democratic Senate caucus outclasses the Republican Senate caucus by miles and miles. If you watched the Schiavo debate, you know this is also true of the House. The more public attention on Congress, the more apparent this will be.

Tom DeLay was not a recognizable name to most voters until recently. A poll right before or after the 2004 election showed that 33% of voters knew that the Republicans controlled both houses of Congress.

The more public attention on Congress, the better our chances in 2006.

2) As a history dork I find it kind of funny that in a debate over something we've decided to call the "nuclear option", Reid seems to have made an offer that's a teeny bit reminiscient of JFK's offer to remove the U.S. missiles from Turkey in exchange for the removal of the USSR's missiles from Cuba--but only if the deal is kept secret.

Since we're not talking about a REAL "nuclear option" though, I'm sure Reid has his eyes on controlling the fallout and not just on preventing the nuclear exchange. And while it's in Reid's interests that this deal be kept secret if it's accepted--once Frist has rejected it it's completely in Reid's interest that the deal be made public, in just the manner & just the place that Brooks just did it.

I think the audience may be less the general public than wavering Senate Republicans. To the extent that Chuck Hagel & John Warner are really worried about damage to Senate tradition and are not just making moderate noises before the inevitable party line vote--how ridiculous does Frist's claim that he has no choice in the matter now sound?

3) One more time: what makes this "nuclear" is not that the Republic will fall if there is no judicial filibuster. What makes it "nuclear" is that the majority party would be changing the Senate rules by a 50+1 vote instead of the 2/3 vote that the Senate rules currently require. They are breaking the Senate rules & rewriting them to suit their convenience. (The Senate Parliamentarian says so, so you're not going to convince me otherwise until you convince me you know more about this than the Senate Parliamentarian. Arguments that the guy who is geeky and devoted enough about Senate Rules to become the freaking Senate Parliamentarian has secretly been a Democratic hack for all these years will not be taken seriously.)

If they do this once they can do it again. They are already making noises about bypassing the committee requirement for the Bolton nominate. They are playing Calvinball, and there is absolutely no reason to believe that they will stop playing when it comes to the legislative filibuster.

I'm also curious about this:

I don't like all of the nominees, but I do think they each deserve an up-or-down vote.

Suppose for the moment that you're a Senate Democrat and you believe (with fair justification) that a) several of Bush's nominees are simply not qualified for these appointments -- that is, not merely that you disagree with their policies or judicial opinions, but that you find those policies and opinions to be truly outside the scope of legitimate discourse -- but that b) they'll be confirmed along a party-line vote if it's put to the floor. [If the current judges don't do it for you, imagine they're something you find truly unpalatable; neo-Nazis or Communists or whatever.] What would your response be? To meekly allow the measure to come to the floor and allow the incompetent, the unqualified or the otherwise unfit to be nominated to a lifelong position in the judiciary? Or to make the intensity of your disapproval known and to utilize the full range of legitimate tactics at your disposal to stop these wretched appointments?

And if you choose the former, how can you claim to be representing the best interests of either your constituents or your country?

To add to Anarch's hypothetical: suppose you're a Senate Republican, and you believe both (a) and (b). Moreover, while a Democrat would not have to collude in the party-line approval of an unqualified nominee, a Republican would -- and yet you might believe that it will happen regardless, even that you will vote for the nominees in question. (You watched what happened to Arlen Specter, after all. You feel the same pressures as everyone else.) Surely your response ought to be to oppose the 'nuclear option' -- except that the same pressures that would lead for your voting to confirm Janice Rogers Brown would prevent you from voting your conscience here.

von- Hagel was on CBS this morning, and in reference to this debate over judges he made a comment eerily reminiscent of Brooks' overall point about taking back Senate prerogatives from the outside groups on both sides. I suspect there's a play afoot.

I agree, Praktike. I think we're going to see a deal in the next week because, at bottom, the reasonable minds on both sides know that they're playing a very dangerous game.

I'll try to respond on filibuster point in greater detail in a future post. My basic position is that the Senate's Constitutional duty of "advise and consent" is distinguishable from the legislative function, and that it's reasonable to have different rules for the two.

BTW, I suspect that, if given an up or down vote, a couple of these nominees would be in serious trouble (Owens, in particular).


von, I'm curious: do you think Owen and Myers (and people like them) are worthy to be appellate judges? Do you respect their decisions; do you think their philosophies and concepts of Constitutional and statutory law are such that they merit lifelong appointment to the Federal bench?

Because you can't honestly cast this as "Democrats just want to keep Bush's judges from being appointed." The vast majority of Bush's nominees have been confirmed.

And this isn't a matter of procedural "up or down vote." In terms of process, this is about a process that has already been mangled in order to emphasize majoritarianism, in order to favor the GOP agenda.

You know full well the other processes by which the minority party can block judicial nominations - which the GOP used extensively even though it had a majority in the Senate, to keep Clinton's judicial appointees from ever making it out of committee - were nullified by the GOP Senate leadership when Bush became President. It's disingenuous to say "Well, yes, that was wrong, but now we want to play fair" when those other procedural blocks have not been put back in place.

Is the minority party supposed to just give up, give out, and give in? Then why have a minority party at all?

Is the Senate supposed to simply rubberstamp whatever the President wants? In that case, why bother having a Senate at all?

Von--to pile on, a third hypothetical, or rather a more specific version of Anarch's.

Your initial reaction to the OLC torture memo & the Department of Defense legal memo adopting its recommendations was to suggest that the authors should face professional sanctions and possible disbarment.

One of the authors is a tenured professor at Boalt Law School. Another two of the authors of those memos have been nominated. One has been confirmed, the other is being filibustered.

Are the Democrats wrong to filibuster William Haynes' nomination to the Fourth Circuit? Would they be wrong to filibuster his, Bybee's or Yoo's nomination to the Supreme Court?

If so, could you please explain WHY a memo that you once thought was grounds for disbarment is not grounds for using all the tactics the Senate rules allow to prevent elevation to the Supreme Court?

Don't feed me this line, either:
"BTW, I suspect that, if given an up or down vote, a couple of these nominees would be in serious trouble."

The Republican caucus has not yet defied Bush in a serious way. The closest they've come is the Bolton nomination, but even there it is completely clear that he would be confirmed in a floor vote.

There is less than no basis for assuming they would defy Bush on any Supreme Court nominee. Zero of them broke ranks on Gonzales, zero have broke ranks on Abu Ghraib supboenas, zero have broken ranks on an investigation of CIA interrogation policies, zero of them have cosponsored an amendment that would have a substantive change on our interrogation policies when it could not be safely stripped out in committee.
On every single vote< where they have had to choose between investigating or fixing our interrogation policies, or obeying the Bush administration, every single member of the Republican Senate caucus has chosen to obey the Bush administration.

So don't expect me to believe confident predictions that on a matter as important as a Supreme Court nomination, six of them are suddenly going to break ranks. It could happen, but it's extremely unlikely and it's certainly not something that we should count on.

Nor is there a credible argument that the Constitution requires an up or down vote on judges and nothing else. Maybe it's good policy to have a legislative filibuster and not a judicial filibuster, but there is nothing in the Constitutional text or history that says this.

So what on earth is guiding this? You have said you don't believe that the Democrats' and Republicans' actions are automatically more-or-less morally equivalent, equally extreme, equally reasonable, equally justified. You get annoyed when I say that's your first principle. And I guess you would know. But--if there's another explanation for your position on this, I have no idea what it is.

"My basic position is that the Senate's Constitutional duty of "advise and consent" is distinguishable from the legislative function, and that it's reasonable to have different rules for the two."

Understood. Two things come to mind. First, they don't have different rules for the two now, and the option Reps are discussing is pretending that they do, because they cannot comply with the procedure for changing the rules. Surely you don't find this legitimate at all. Second, it would seem to me that if the Senate is going to have a supermajority requirement for anything (in addition to treaties) it ought to be lifetime appointments. There no obvious reason why a bill declaring National Turnip Week needs 60 votes, and confirming a judge wouldn't. Even with serious legislation, you can always correct mistakes. Tom DeLay's threats to defund aside, there's no going back with mistakes on the bench.

What's so wrong with making a President find someone who can get 60 votes? Except that we'd have to give up electing people too immature to try. (OK that's not fair -- the Admin is playing the cards they're dealt, and finds that sending up nominees who cannot get 60 votes is in its interest. What I don't see is why von thinks it's in our -- the country's -- interest.)

(BTW, in addition to there being no basis in the text or history of the Constitution for a distinction between judicial and legislative filibusters, there is no basis in the text or history of the Constitution for a distinction between the filibuster & the whole committee/markup process. I don't mean blue slips; I mean requiring a nominee to pass through a committee. If an "up or down vote" on the Senate floor is constitutionally required for all nominees, then allowing 10 Senators on the judiciary committee to stop it is no more legitiamte than allowing 41 Senators to stop it.

Frist seems to be moving towards just this argument, as it's currently helpful for Calvinball purposes, but it is completely absurd. It would destroy Congress' authority to hold confirmaton hearings, ask & demand answers from nominees.)

Von, as you may recall, they had a full debate filibuster in the fall of 2003 (I think) on the judges. I listened to quite a bit of it, and what I heard was pretty good. One of the best speeches was from your senior senator: he went on at some length about how he selects the people that he recommends to the WH -- who he talks to, what he looks for, and the like -- and it sounded like the perfect way to go about it. I remember thnking, though, that the nominees in question (those for the DC Circuit especially) were NOT chosen in this manner at all.

I'd make a deal: if we're going to use Sen Lugar's standards and procedures, then an up-or-down vote is perfectly reasonable. But if the process is going to be played as wedge politics at the nomination end, the Senate minority owes nothing.

btw, in case anyone doesn't know what I mean by "Calvinball" see this link

I wonder what position centrists would have taken in the first constitutional convention. It seems like things such as the 3/5 compromise are born out of this "split it down the middle" mentality.

But like Katherine, I'd really like an explanation for Von's position wrt her hypothetical regarding Yoo and the reality concerning Haynes. Von is on the side that it's wrong, wrong, wrong, wrong to filibuster judges under any circumstances. I wonder what he suggests one should do when faced with such blatant evil? Simply stand on the way side and pat one's self on the back for maintaining civility?

Otilia de Koster would be mortified to hear of such a trade off.

Whatever "civility" the centrists think we've lost in the Senate, let's remember what a real loss of civility is like. This hyper formalism where merely asserting parliamentary maneuvers counts as equivalent to state sanctioned torture is a bizarre outlook on what counts as "civility".

Namely: there are a lot more people on the right who are off in what I would think of as extreme and dangerous territory than there are people on the left. We have Ward Churchill, an obscure idiot; the right has Ann Coulter, who rather than seeming to excuse the slaughter of innocent office workers in the WTC, suggests that the terrorists should have aimed at the New York Times building and its innocent office workers instead.

I notice you went right to Churchill, and past the enemy propagandist (ex-Baathist thugs are the moral equivalent of Minutemen!) that the leadership of the Democratic Party was ceremonially fellating at his DC movie premiere less than a year ago. I admire the attempt at second carding, but it's difficult when the card being skipped is already face up on the table.

I went and found the Lugar speech, from Nov. 12, 2003:

I would like to take a slightly different approach in my speech. I believe this debate is about the thought that we ought to have a vote up or down on each nominee. That is very important to the Senate, to
our country, for fairness to the nominees and to the strength of the judiciary.

It has been my privilege to serve almost 27 years, 15 of these years with a Republican President. The custom I knew as a young Senator and now in whatever age I am at is that you have a responsibility: If you are
going to make recommendations to the President of the United States, do so with care.

In the first 25 years of my career, I appointed a nominating committee in Indiana made up principally of very distinguished attorneys and judicial figures for whom I had respect and from all over my State. I knew these people commanded respect, and they were very
helpful in identifying, each time a judicial vacancy occurred, several nominees.

Without fail, I presented all of these nominees to the President, and his staff sifted through them and in each case came up with one of the nominees, frequently the one recommended first by the panel I had suggested. And thank goodness, each one of these nominees had an up-or-down vote, usually a very fine consideration by the Judiciary Committee. I did not ever take that for granted, but I saw coming along the horizon a very different story in the current workings of the Judiciary Committee.

I have great respect for that committee and its members and for those who have served as chair and ranking member of the committee. I think there is a crisis in that committee which is very important for us to be thinking about. I believe that privately a good number of members in the committee on both sides of the aisle deeply regret what has been occurring in the committee.

Nevertheless, once again, on May 15, 2002, I was confronted with the news that Judge William Lee and Judge James Moody would both be retiring. I appreciated that those vacancies, two of them, were going to come in to the particular milieu about which we are now talking.

So on this occasion, I took the responsibility personally to write to the press throughout our State that we had a very substantial opportunity ahead of us. I outlined all the qualifications I could see of a Federal judge and, with great cooperation of the press, invited every well-qualified person to apply. The applications the candidates filled out consumed tens of pages, including substantial writings and often the statements they had made in their professional work.

Over the course of 4 months, ultimately 15 serious candidates emerged. I personally read all of their statements carefully. Those 15 candidates included 6 State judges, 4 U.S. magistrate judges, 2 attorneys in private practice, 1 Federal prosecutor, 1 Indiana
prosecutor, and a legal professor. Their ages ranged from 35 to 61 and they represented 11 counties across our State.

After taking a hard look at all of these pplications, I interviewed, over the course of an hour or 2, 5 of the nominees I thought were the most promising. In those interviews, I was interested principally in
their professional skills, but likewise I had read the opinions of these nominees. I did not ask them questions on social issues in America today, on political issues, on foreign policy issues. I did ask
them about their work, the characterization of how they would fulfill their responsibilities.

Following all of that, I submitted three names to the White House, and two of those persons were in fact nominated. They were Philip Simon, an assistant U.S. attorney and chief of the criminal division in
Hammond, IN, and Theresa Springmann, a U.S. magistrate judge from Hammond, IN, this being the northern half of that State, that particular district that was involved.

Philip Simon, I had found and the Senate Judiciary Committee discovered, had a remarkable record as a U.S. attorney. He was chief of the criminal division and responsible for all criminal prosecution in the Northern District of Indiana. He supervised and participated in prosecutions involving large-scale drug distribution rings, illegal firearms trafficking, white-collar fraud cases, environmental crime, and mob-related racketeering cases. He was in charge of a public corruption task force in Lake County, IN, which was very vigorous. He has been the recipient of a number of awards and commendations. The mutual insurance companies of Indiana presented an award to Judge Simon for his work to combat insurance fraud. He was given the Directors Award by former Attorney General Janet Reno, the highest award given to a U.S. attorney by the Justice Department in the last administration.

Judge Springmann was the first woman to be made partner at Sprangler, Jennings & Doherty, the largest law firm in northwest Indiana. She followed this up by becoming the first woman judicial official in the Northern District of Indiana, presided over 30 civil jury trials, 10 civil and criminal bench trials, and conducted 300 settlement conferences for the district court. She received a number of commendations and the highest rating from the Lake County Bar Association.

At this point, I decided to write to Senator Hatch and Senator Leahy, chairman and ranking member of the committee. Beyond that, I went to both of them for personal conversation about these nominees, to explain the procedure and my own criteria, at least, in making these suggestions to the President.

In fact, on March 12 of this year, Judge Springman and Judge Simon were given hearings; but prior to that time, I approached Senator Evan Bayh of Indiana, and I gave to Senator Bayh the total records of these nominees, so that he might see exactly the same applications I had examined, the same opinions. I asked him for his support of these nominees, and in fact he gave that. He appeared with me before the Judiciary Committee on behalf of these two nominees.

M. Scott: As you suggest, I deliberately did not compare Coulter to Moore. That's because I do not think that the two are comparable. I'll quote Digby, since I agree with his point entirely:

"Ann Coulter is not, as Howie Kurtz asserts today, the equivalent of Michael Moore. Michael Moore is is not advocating the murder of conservatives. He just isn't. For instance, he doesn't say that Eric Rudolph should be killed so that other conservatives will learn that they can be killed too. He doesn't say that he wishes that Tim McVeigh had blown up the Washington Times Bldg. He doesn't say that conservatives routinely commit the capital offense of treason. He certainly doesn't put up pictures of the f*cking snoopy dance because one of his political opponents was killed. He doesn't, in other words, issue calls for violence and repression against his political enemies. That is what Ann Coulter does, in the most coarse, vulgar, reprehensible way possible.

Moore says conservatives are liars and they are corrupt and they are wrong. But he is not saying that they should die. There is a distinction. And it's a distinction that Time magazine and Howard Kurtz apparently cannot see. "

That's why I went to Churchill.

Just in passing, I think the "advise" part of "advise and consent" is not being taken seriously enough in this thread or elsewhere. I always approved of the "blue slip" in principle, however aggravated I might have been at its practice, because for if the word "advise" has any important functional meaning, and it would be a gross insult to the founders to believe otherwise, Senators should have power over the appointment of judges nearly equal to the President's.

I would ask, in some spirit of textual interpretation, that the words "advise" and "consent" be given the equal weight they share on the surface of the Document. And thought be given to what that would mean.

Hilzoy, Moore's comment about the terrorists bombing the wrong people by going after New York (days after 9-11) is a lot closer to Coulter than merely calling conservatives liars, corrupt and wrong.

"Not to pile on or anything, but I'd like some kind of justification for this new bout of "a pox on both their houses", especially vis a vis hilzoy's point about center of gravity."

The center of gravity in the courts is most decidely not conservative. The problem with the courts as an institution now is that it has turned into a game of who can control the levers of power to get through unpopular court rulings that would never survive on democratic votes. The right wing is attempting to populate the court with right-wing activists to balance left-wing activists. The whole exercise is a mess because I would want to replace left-wing activists with non-activists of any political persuasion instead of right-wing activists to attempt to tone down the ridiculously political nature of the way the Court is being used by both sides. The institution has been deeply corrupted in its culture, and I'm not sure I see any easy way back to judicial restraint.

Which is what makes things like this so silly: "Priscilla Owens comes to mind: she emphatically does not believe in judicial restraint".

Liberals complaining about a lack of judicial restraint? I guess that is good. But are you for judicial restraint, or judicial restraint by conservatives? Can we execute murderers who killed when they were 17 again please?

That might fly, Hilzoy, if the enemy propagandist in question hadn't written this on September 12th, 2001:

Many families have been devastated tonight. This just is not right. They did not deserve to die. If someone did this to get back at Bush, then they did so by killing thousands of people who DID NOT VOTE for him! Boston, New York, DC, and the planes' destination of California -- these were places that voted AGAINST Bush!

And yes, before you point it out, in the next paragraph he says "Why kill anyone?" Doesn't matter--on the day after the most serious terrorist incident in US history, he suggested that it would have somehow made more sense for OBL to have staged the 9/11 attacks in a state populated more by Republicans. Given that Coulter has been suffering consequences for her various out-of-line statements (such as being fired for her "kill them and convert them to Christianity" comments, and having USA Today drop her convention column), whereas Moore has become more prominent since his, your attempt to tip-toe past Lord Pork-Pork isn't credible. As I said before, dealing seconds is futile when the card being skipped is face up on the table.

Sebastian: there are a lot of liberals who have been complaining about judicial activism for some time. Me, for instance. I think the case about 17 year olds was wrongly decided, much as I like the outcome. But be clear: Anthony Kennedy is not a liberal activist judge.

I also try to distinguish, myself, between judges whose philosophy differs from mine, and who therefore find things in the Constitution that I don't think are there, but who are not just making stuff up, and genuine activists, who are. I think Scalia's views on interpretation are all wrong, for instance, but I don't think he is beyond the pale of more or less reasonable interpretation (where 'reasonable' does not mean right.) (Leaving aside Bush v. Gore for now.) Owen and Rogers are.

Likewise, I think if I were a conservative I would regard a lot of the decisions some conservatives take to be paradigmatic examples of 'activism' as the analog of Scalia.

Given that Coulter has been suffering consequences for her various out-of-line statements . . . whereas Moore has become more prominent since his . . .

Actually, I haven't heard dick from Michael Moore lately, while Coulter had the cover of TIME Magazine (the liberal media!) within the last two weeks. Hell, you and Sebastian both has to leap for a comment that's nearly four years old now -- however reprehensible it is, and it is, and I've criticized it online myself -- while I can find you somethingas bad or worse from Coulter every week.

Don't let that detract from whatever point you thought you were making, though.

M. Scott: I did not tiptoe past Moore; I walked right by him, seeing nothing comparable to Coulter. And despite the many temptations, I didn't make cunning little jokes about her appearance (anorexia; Adams apple... and that's just the beginning of the As.)

"But be clear: Anthony Kennedy is not a liberal activist judge."

Which is precisely my point about the system being so deeply perverted to the extent that it is all about putting your activist judges in place over the other guy's activist judges no matter which side you are on. At the Presidential and Senate level, no matter which side you are on, the question is not "which judge will show restraint and deference to law and the Constitution" but rather "which judge can I get in who will push through the agenda that I probably couldn't get through the democratic system". And if we must play that game, I'm going to like conservative judges better. But I'm really annoyed that appointing judges is all about that kind of game at all. And the reason I can say "a pox on both their houses" is because liberals had mastered the judicial game for forty or fifty years before conservatives woke up to the damage. It is only now that conservatives are on the cusp of catching up that the virtues of judicial restraint are being rediscovered on the left. And the problem with that is that there is now an entire academic and intellectual defense of non-restraint which has been deeply imbedded in judicial culture for 50 years to fight against if you want to try judicial restraint again.

"Likewise, I think if I were a conservative I would regard a lot of the decisions some conservatives take to be paradigmatic examples of 'activism' as the analog of Scalia."

I don't know. I think Roe v. Wade is a classic example of activism full stop. It is not just about having a different method of legitimate interpretation. Brennan's opinions on the death penalty are not just a reasonable but different approach in interpretation.

M. Scott: I did not tiptoe past Moore; I walked right by him, seeing nothing comparable to Coulter.

Which is your right--but don't say that you can't understand why some don't take your viewpoint seriously on this--Sebastian and I have pointed out the reasons why Moore is just as bad--if not more so--than Coulter. If you can point to an event where Coulter was being sucked up to by remotely as many Republican luminaries as Moore was by Democrats at the DC 9/11 premiere, I'd love to see you do it.

And despite the many temptations, I didn't make cunning little jokes about her appearance (anorexia; Adams apple... and that's just the beginning of the As.)

Don't hold back on my account--AC doesn't do a thing for me (now, Laura Ingraham is another story. . .). As for Lord Pork-Pork, the name is more of a "tribute" to his status as an enemy propagandist than his planetoid-sized posterior, though the latter certainly makes for amusing insult possibilities (as happened when he was wearing a black suit at his DC 9/11 premiere, surrounded by Democratic sycophants, and my reaction was "That's the first time I've ever seen a celebrity with his own event horizon and accretion disk.").


Ah, the standby defenses. "Michael Moore is fat!" and "Activist liberals control the courts!"

Michael Moore doesn't weigh more than Ann Coulter (who, as mentioned, was on the front of TIME), Rush Limbaugh, Jerry Falwell, Michael Savage, Ollie North, Tom Delay, etc, etc. Even if you add Ward Churchill. Sorry.

Also, weren't Rush Limbaugh and Michale Savage given VIP treatment at at least one Republican National Convention? And considering Limbaugh, Savage, Coulter, and most of the others regularly call liberals and Democrats traitors, terrorists, Saddam-supporters, and flat out state we should be killed, trying to say "Michael Moore is worse!" is a crock.

And most of the arguments I've seen about judicial activism have either been really about abortion, or constructed so that decisions that said people shouldn't be thrown in jail for consensual adult sex were decided wrongly, I've never quite found that argument appealing.

"And the reason I can say "a pox on both their houses" is because liberals had mastered the judicial game for forty or fifty years before conservatives woke up to the damage."

Fifty years, not thirty, eh?

I don't mean to imply that you oppose Brown v. Bd, but you sure don't seem to give a f*** about it either. Certainly it's not considered important enough to penetrate your fairy tale about the evil Warren Court, or your fairy tale theory about proper Constitutional interpretation--it doesn't make even a tiny dent. It's like it never happened.

Dwight Eisenhower was not playing "a liberal judicial game". I don't really think JFK and LBJ were either, and I know for sure that Richard Nixon and Gerald Ford weren't. Nor was Thurgood Marshall playing some cynical game when he argued Brown & all those other cases.

It's not only that you overlook the good, essential parts of the Warren Court legacy by ignoring the civil rights cases, and tell half the story. It's that you can't understand the other half of the story, the part where they DO go much too far much too fast with tragic consequences, without understanding the history of the desegregation cases. They got it wrong later in part because of the memory of those other cases. You don't think the civil rights litigation influenced Thurgood Marshall's interpretation of the Constitution? Come on, that's ridiculous.

You cannot understand the mistakes and motives of Warren, Marshall, Douglas, and Brennan if you leave Brown out of the story, anymore than you can understand the mistakes and motives of Bork, Scalia, and Thomas if you leave Roe out of the story.

Sebastian:

I agree with Hilzoy.

I don't think 17-olds-should be executed: if we define adulthood arbitrarily at 18 for some purposes, we must so define it for all. (If they are assumed sufficiently mature to deserve the death penalty, then surely they are sufficiently mature to vote and drink!) In fact I don't think much of the death penalty at all. But I'm not so sure that the courts were the right place to decide it. That one is ambiguous, because "cruel and unusual" really is part of the constitution. The gay marriage in Massachusetts, however, I thought was a serious mistake. Connecticutt did a better job of it.

I'm also a bit leery of the New Hampshire judicial decisions on school funding. Though it also seems unlikely that NH would have stacked its judiciary with left-wingers!

Still, there are some cases where judicial restraint can be abused. Refusing to strike down racial segregation in public institutions comes to mind. (And the 17 year on death row can be argued to be in the same category, if not the same degree. It depends on your definition of who is a mnor and when.)

And I'm not quite sure what we are arguing about anymore. Most of us Democrats had learned our lesson by 1996, when it became obvious that a balance of power was actually a good thing. There were just a few glorious years of political grown-up-ness, from 1994 to 1998, when the budget finally got balanced for the first time in forever. I didn't even mind the blue slips, much. Who truly cares if one fewer qualified judge makes it? It surely beats having one more unqualified judge!


I agree with Phil on Coulter/Moore, and would like to point out that she did not in fact lose her column at National Review because of what she wrote, but because of personal conflict with the editors. NR would have been happy to continue publishing her had she behaved more professionally.

Don't believe me? Would you believe Jonah Goldberg?

Goldberg as much as admits that his only problem with Coulter's piece was its tone, not its content. He even thinks "She's a smart and funny person."

Let's be blunt. The views of the likes of Coulter and Limbaugh are very popular on the right, as are the less colorfully stated but equally obnoxious views of people like James Dobson. They all enjoy an influence within the Republican Party that vastly exceeds that of equally extreme leftists among the Democrats.

Sebastian (quoting me): "Not to pile on or anything, but I'd like some kind of justification for this new bout of "a pox on both their houses", especially vis a vis hilzoy's point about center of gravity."

The center of gravity in the courts is most decidely not conservative.

Sebastian, could you please read the comments before responding to them? Hilzoy and I were talking about activist groups not the courts.

Doesn't matter--on the day after the most serious terrorist incident in US history, he suggested that it would have somehow made more sense for OBL to have staged the 9/11 attacks in a state populated more by Republicans.

Which does not, as you seem to be implying, mean that that remark was legitimating the violence -- indeed, you acknowledge as much when you grudgingly admit that Michael Moore disavowed killing altogether in the next sentence -- but rather that the remark was noting that the violence was misdirected given the ostensible rationale under which it was committed. I happen to think it was a stupid and tacky remark on any of a number of levels, but Coulteresque it was not.

There's been a lot of accusation of Democratic hypocrisy on this issue. It is unfounded. No matter how much Democrats bitched and moaned about blocked judicial nominees, there is one thing they did not do: change the rules or threaten to change the rules. Even the blue-slip peremptory challenge remained on the books. There is a qualitative difference in legislative practice here. It's what Katharine means by Calvinball, and she is absolutely right. Bitching and moaning is one thing. It's legitimate to put that kind of pressure on your opponents.

Bush is following more in the manner of FDR's (or Adams') threat to pack the courts. Yes we all have heard the story by now. That's clearly the unfortunate precedent he wants to follow.


It's not only that you overlook the good, essential parts of the Warren Court legacy by ignoring the civil rights cases, and tell half the story. It's that you can't understand the other half of the story, the part where they DO go much too far much too fast with tragic consequences, without understanding the history of the desegregation cases. They got it wrong later in part because of the memory of those other cases. You don't think the civil rights litigation influenced Thurgood Marshall's interpretation of the Constitution? Come on, that's ridiculous.

We've had this discussion before and I understand it full well. And I fully admit that the 150+ year racial history of the United States made Brown v. Board of Education a neccessary evil or an emergency resolution. But there is pretty much nothing that comes close to that. The fact that liberal judges since then have formed a judicial philosophy to strike down huge swaths of things that have nothing to do with race or slavery is not in any way justified by Brown. They tasted the heady power that we might sometimes allow in an emergency situation, and decided to keep it for all time.

You wouldn't be happy with it if another branch of government used emergency powers and kept them for 50 years, but when it comes to the Courts you bend over backwards to justify that very thing. Brown v. Board of Education had plenty of resistance in a very short run, and then was accepted. If the Court had stopped there, we wouldn't be where we are today. But when the Court decided that the power they used then could be used on almost any social topic, they went way too far. Judges with restraint would have said "we really needed to do that over race, but we shouldn't try to do that all the time". What actually happened was that law professors and judges pretended that Brown v. Board of Education was another routine case and a routine exercise of power. The legal realist school was arguing that interpretation functioned as will to power anyway. And so it has become. Which is precisely why the courts have become so politicized. If the Supreme Court wanted to step in once a generation to help out on a deep divide that had been tearing the country apart for more than a hundred years, that would be one thing. Trying to do it on the whole range of social topics and pretending they are forced to do so by the Constitution wasn't a good choice--it has been profoundly damaging to the trust people put in the Court and it has severely warped the political structure to the point where people argue that appointing judges is one of the most important functions of the President, and that one of the most important reasons to choose a Senator should be based on how he will vote on judicial confirmations.

That is a ridiculous state of affairs, and it didn't come into being because too many judges showed too much judicial restraint.

Anarch, that is because your idea of extremist is very different from mine. From where I sit, the Democratic Party has been largely captured by a very damaged foreign policy cadre for my entire lifetime. (Such that for instance even with the UN, only ten Democrats voted for the Gulf War I authorization). It also wasn't able to accurately assess how welfare worked during its years in power, and has a similar problem with many social programs (which we are seeing play out in for instance the do anything but test actual performance school debates).

Perhaps they aren't 'extremists' because they already form the core of the party?

Sebastian: I think we must be working with very different ideas of 'extremists'. As I see it, your party has been captured by a damaged foreign policy cadre, which has done enormous damage to us both by its actions and by its failures to act (including its failure to deal with loose nukes, its failure to do much of anything to prepare for the emergence of China as a major economic power, other than placing us in its power by creating a deficit that we need them to finance, its more or less total lack of a coherent policy on North Korea, and on and on.) I think your party is also disastrous domestically, in particular as regards the deficit. But I do not identify e.g. Donald Rumsfeld or Dick Cheney as part of your party's extreme wing. They have a totally different take on basically everything than I do, but them's the breaks.

The extreme of your party is attacking the judiciary, painting its opponents as traitors who support the terrorists, and trying to demolish the wall between church and state. Its members do not just differ from me on policy; they treat fundamental institutions of this country with contempt, and slander those who disagree with them. They foment hatred for political gain, and have no respect for the rule of law. They are in another category entirely. (And it's only when the Bush administration acts like them -- e.g., when they asserted the President's right to declare citizens enemy combatants and detain them indefinitely without charges or a trial, or when they treat the convention on torture not as an obligation this country has entered into and pledged its word to live by, but as something we can just violate whenever we see fit -- that I think of calling it extreme.)

I am sure we have some such people too; but I'm also sure there are more of them on the right just now, and that they are much more powerful.

It also wasn't able to accurately assess how welfare worked during its years in power, and has a similar problem with many social programs (which we are seeing play out in for instance the do anything but test actual performance school debates).

On the other hand, the "classify a school as 'failing' if it can't show testable progress on every single child" leads to nonsense like this.

Anarch, that is because your idea of extremist is very different from mine.

Let's try this really slowly: I'm not saying that you're right or wrong. I haven't got there yet. I'm saying that what hilzoy and I were referring to were activist groups and extremists within a party. About people like Ward Churchill, Rush Limbaugh and Michael Savage. You quoted my response as being about the courts. As in "The problem with the courts as an institution now..." The two topics aren't related; or if they are, you sure as heck haven't established the relation. When I tried to correct you -- as in, to try to keep some correlation between the conversation the rest of us were having and your interjections -- you responded with an equal non sequitur... and, ironically, it was a response to my original post rather than the second post I made.

My head hurts.

Now could you please read what's actually written before responding?

I think Brown was RIGHT, Sebastian. Not an act of "emergency power" or "necessary evil"; an act of judges actually doing their job for the first time in eighty years. The reasoning was surprisingly weak, but the holding enforced the Fourteenth Amendment. It's ridiculously obvious that Jim Crow was not "equal protection of the laws" ,and their having the courage to say so, in spite of vicious attacks from the James Dobsons of that day, led us out of a very dark time. You may see it like Lincoln's suspension of habeas corpus--I see it more like President Bush returning to Washington after a month of clearing brush, or to be less flippant, Lincoln taking office from James Buchanan and deciding that it's not actually okay for the South to secede.

Some people think the Constitution meant what it said about being the Supreme Law of the Land. You, as far as I can tell, really do not, at least not when a judge doesn't share your precise, persnickety, poorly supported interpretations of it. You would prefer to kill it and replace it with the penal codes of the thirteen colonies, and you believe that any judge who disagrees is abusing their power.

Hey Katherine, take it easy! Sebastian is not all that far from you in his point of view on this.

I just wanted to point to this juan cole post, with a fascinating quote from Hardball recently. Juan Cole, of course, goes too far in his analogy. (What else is new?) But I don't think Joe Biden does.


"Some people think the Constitution meant what it said about being the Supreme Law of the Land. You, as far as I can tell, really do not, at least not when a judge doesn't share your precise, persnickety, poorly supported interpretations of it."

And you apparently think the Constitution is whatever liberal game you want to play and screw anyone who disagrees with you because they are obviously both evil and too stupid for words. Or is that only when I'm taking you as seriously as you take me?

OK, kids, time out.

Katherine: I agree with you about Brown, and about its not being a necessary evil but straight Constitutional interpretation. But I do not see that Sebastian has said anything that would warrant saying that he doesn't think the Constitution is the law of the land.

And if I had seen Sebastian's post before I posted mine, I would have directed it at him too. Most of the people who read this blog, but you and Katherine (and, I hope, I) in particular, care deeply about the Constitution. I hope we know that, however much we exasperate one another.

And: I didn't mean either post to come off as patronizing, or anything. Last awkward interjection for now.

If Brown was merely a straight-forward interpretation of the Constitution, why do you say: "It's that you can't understand the other half of the story, the part where they DO go much too far much too fast with tragic consequences, without understanding the history of the desegregation cases. They got it wrong later in part because of the memory of those other cases."?

Why would a straight-forward interpretation have inspired getting it wrong later?

I think (my) problem is that I skipped a step in the reasoning. If you believe that Brown was nothing more than straight-forward Constitutional interpretation, it does not make sense to talk about it inspiring the Court to go too far. So either you believe that Brown involved a bit more than just ruling that Jim Crow laws weren't equal protection (and clearly it does) or it makes no sense whatsoever to talk about Brown inspiring the Court to go too far. If it were just run-of-the-mill interpretation, Brown would have been just another in a long run of temporarily controversial but understandable Supreme Court jurisprudence. It wouldn't inspire further times when the Warren Court went "too far" because it wouldn't have been an example of going far at all.

But if that were true, your attack against me makes no sense whatsoever because if that were true, the Brown case and the subsequent miraculous discovery of previously unheard of rights without the well heard of amendment process are not linked by anything except for the fact that they showed up at the same time.

But instead of saying "it is awful that we needed to act in this case involving THE most contentious issue in the history of the United States--an issue that has plauged the nation for more than one hundred years and caused a civil war, I hope we don't have to face something the monumental again for at least another hundred years" the Warren Court acted as if the fudging they felt they had to do on the race issue could be justified by changing the entire nature of Constitutional interpretation so that they could tinker with almost anything--no matter how many penumbras they had to scry for in order to do so. It wasn't much of a stretch to extend the slavery issue into race. It was a stretch but it seemed necessary considering the 150 year history of slavery and race. Extending search and seizure into abortion rights wasn't the same thing at all. Pretending that a Constitution which explicitly talks about capital cases outlaws the death penalty isn't the same at all. It isn't the same in terms of linkage to the text and it isn't the same in terms of importance in dealing with a deep systemic problem which the nation had been openly struggling with for its entire history.

All the stuff about Micheal Moore and the Nutty Professor is a smokescreen. Even if one magnifies their power and influence and even if one exaggerates their dumbest statements, they don't have nearly the importance of Pastor Ted, Dobson, Santorum, or Frist. The left doesn't have anything that is conmparable either in power,money, or anti-democratic influence as the Christian Dominion folks or the Reconstructionists. There isn't an intellectually honest way to argue that the left is as influenced by or harbors extremists as much as the right. People who think of themselves as moderate, responisble and reasonable need to stop deluding themselves about the current state of the Republican party.

Interesting how it all seems to come back to Roe v. Wade. I mentioned in an earlier thread that I thought the notion of viability was a commonsensical notion and Hilzoy responded that this made no allowances for medical advances, positing an artificial womb. IA obviously NAL, but it seems to me that almost any law or ruling could be made problematic by positing technological advances, though I take Hilzoy's point that in this case, such medical advances are probable, not simply speculative.

While I don't want to stick my head in the middle of a food fight, reading the decision (again, not as a lawyer), it strikes me not as some sort of 'subsequent miraculous discovery of previously unheard of rights' (and perhaps there is some legal viewpoint of this that I don't understand, as I can't parse 'well heard of amendment process") but of an honest attempt to try and balance competing rights, especially as the decision not only denies certain plantiffs (specifically the doctor and the Does) of having standing and reviews the history of abortion laws. I also like the wikipedia page on the morality and legality of abortion

I also have the same opinion as katherine about Brown simply being a long overdue acknowledgement of equal protection and I think most Americans feel that way (and I would note that the thread that ending up discussing whether the South got off lightly for the Civil War can be connected to this). However, this is where the NIMBY effect raises its ugly head and I believe that while the majority of Americans feel that way, but have not always been willing to have that extend to where they live.

All the stuff about Micheal Moore and the Nutty Professor is a smokescreen.

the more i look, the more i think everything the professional right-wing does is a smokescreen.

the enemy propagandist ... Lord Pork-Pork

guess the LGF sewer has backed-up again.

the more i look, the more i think everything the professional right-wing does is a smokescreen.

You know, it just now occurred to me that the failure of Air America can be taken as a giant pat on the back to my counterparts on the Left. When stupidity doesn't sell well, either the audience is out of money or too smart to want any. One of those choices is something to be cultivated.

I agree that the Michael Moore quote is poorly phrased and even more poorly thought-out, but I think his meaning is clear: the 9/11 attacks were both despicable on a human level and inept as an attempt at influencing U.S. politics. In my view, the worst this shows about Michael Moore is that he doesn't understand middle-eastern politics, and that he is hyper-focused on domestic political divides, viewing everything through that lens even when discussing actors who are fairly indifferent to such distinctions. (This is roughly comparable to those misguided right-wingers who stupidly interpreted that pre-election Osama Bin Laden tape as a Kerry for President endorsement.) But I don't get out of this quote that he wishes Houston had been attacked instead. It's just not there.

Ann Coulter, on the other hand, has made joking about the killing of political enemies part of her schtick. This is the woman who, when asked about allegations that the U.S. military was deliberately targeting journalists, responded "Would that it were so!" She might not mean it all, but she keeps saying it for whatever reasons. There is no comparison on this issue, sorry.

When stupidity doesn't sell well, either the audience is out of money or too smart to want any

name three major pieces of legislation or policies that BushCo has sold to the public accurately and honestly.

Slart, what do you mean "the failure of Air America"? It appears still to be still on the air.

[too many "still"s ... *sigh*]

Slart, what do you mean "the failure of Air America"?

Oh, I dunno. You can call it spectacular lack of success, if that makes you happy.

Brian C. Anderson is senior editor of City Journal and author of "South Park Conservatives: The Revolt Against Liberal Media Bias," newly released from Regnery.

(Footer of the column)

You may say I'm making an ad hominem argument, to be sure, but there's a reason this is on the opinion page.

"Even if one magnifies their power and influence and even if one exaggerates their dumbest statements, they don't have nearly the importance of Pastor Ted, Dobson, Santorum, or Frist."

The right wing extremists have more power now because Republicans have been winning elections lately. Left wing extremists tend to do rather better when Democrats win elections. Noticing that the right wing extremists are more powerful right this second isn't saying much. Would moveon.org (one of the most horribly misnamed organizations I can think of) have had influence if Kerry won? Absolutely. Am I comparing it to the Christian right? Definitely.

there's a reason this is on the opinion page

Of course. But you'll notice that there are a few bits of data sprinkled in there; if those are correct he does have a point, no?

But people listen to conservative talk because they want to, not because the post-Fairness Doctrine regulatory regime forces them to.

This I agree with, not much else. Has Air America failed? I would say, "wait and see."

I would say, "wait and see."

Ah, throw this in my face, will you? Noted.

Am I comparing it to the Christian right? Definitely.

Can you go into more detail? In exactly what ways is moveon.org comparable to the Christian right? Some specifics would be nice, here. (And keeping in mind things like this.)

guess the LGF sewer has backed-up again.

Considering the fresher scent over at Tacitus recently, you might want to look closer to home for what's offending your nose, sir.

Wow this thread slid all over, didn't it? Back closer to topic, from BOPNews but not particularly liberal or partisan, a post on Presidents & Senators, Parliaments and our own system, judges and filibusters:

Ian Welsh

The right wing extremists have more power now because Republicans have been winning elections lately.

Cart and horse, Sebastian. The issue here isn't power within government, but power within one's own party. If the Democratic party were under the thrall of the extreme left, John Kerry most definitely would not have been their candidate in 2004.

"The issue here isn't power within government, but power within one's own party. If the Democratic party were under the thrall of the extreme left, John Kerry most definitely would not have been their candidate in 2004."

Not a good response. Pat Robertson wasn't the candidate for the Republicans either. This is especially inapt with all the electability discussions which were flying around when the nominee was being selected suggesting that the Democrats really wanted to nominate someone more left but knew they couldn't win.

Sebastian Holsclaw: Not a good response. Pat Robertson wasn't the candidate for the Republicans either.

You're kidding yourself if you think George W. Bush doesn't pander to the far religious right in a way Kerry never pandered to the far left. Just look at their respective stances on same-sex marriage.

This is especially inapt with all the electability discussions which were flying around when the nominee was being selected suggesting that the Democrats really wanted to nominate someone more left but knew they couldn't win.

That's some tortured logic right there. The fact that they picked John Kerry is evidence that the far left is in control of the party? Hogwash. It shows that the far left can be overridden by the moderates, and not always to the party's betterment. Though Dean wasn't actually a far left candidate, much of his initial success was built on appealing to Democrats who were frustrated with how much of the party had become "Republican Lite". This scared the bejeezus out of the leadership, and they reigned it in with the "electability" smokescreen. And the party fell for it. This is not what it looks like when a party is beholden to its extremists.

Oops, should be "they reined it in".

it's a little late to be getting into this food fight, but isn't it the case that the VAST majority of appellate judges were appointed by republican presidents? Isn't the "liberal establishment" theory lacking, shall we say, evidentiary support?

(maybe it's the fault of 50 years of con. law professors. oooh, the state of the judiciary is all erwin chemerinsky's fault!)

[Erwin, for those who don't know Tribe from Bork, is a very liberal con. law professor who taught me at USC and recently left for Duke. He's authored any number of articles on the Supreme Court and theories of constitutional interpretation. He is not a strict originalist.]

I would say the modern trend of jurisprudence is activist rather than showing judicial restraint as an important virtue--whether the otherwise tendency is conservative or liberal.

interesting. so Rehnquist's decisions on the inability of the fed govt to regulate state govts, derived not from any language of the federal const but from the structure of the constitution, is just as objectionable? (seminole, if memory serves. katherine, a little help?) odd that SH virtually never complains about that "conservative" aspect of judicial activism.

I would say the modern trend of jurisprudence is activist rather than showing judicial restraint as an important virtue

I think this is precisely correct, but you seem to argue that this is a bad thing and I would think it was a good thing (or at least unavoidable. The general tendency of the modern world and society is to give more power to the individual and I think that jurisprudence is just one facet of this trend.

Unfortunately, demagogues aim at presenting rights as a zero sum game. Lou Dobbs had some story this am about the current controversy in Kansas where the children of illegal aliens were eligible for in-state tuition to Kansas universities and his spiel revolved around how this was taking rights away from citizens by offering in state tuition. While I do not automatically assume that this course is a good one, one should note that Kansas is suffering from population loss, so that encouraging those who are in the process of becoming permanent legal residents (and presumably citizens) to remain in Kansas would be the kind of forward looking thinking necessary to revitalize rural states.

At any rate, this is quite a distance removed from von's original post, so I'll leave it there, though I hope someone might be moved to blog about the Kansas thing.

"I think this is precisely correct, but you seem to argue that this is a bad thing and I would think it was a good thing (or at least unavoidable. The general tendency of the modern world and society is to give more power to the individual and I think that jurisprudence is just one facet of this trend."

This is the similar to the really bad 'why should I care about civil rights and the police since they are arresting criminals' argument. There is no inevitable judicial trend toward giving more power to the individual enforced by having activist judges. I'm not even sure there is a strong activist judicial trend historically that maps onto that. Once you have justified judicial activism there is no guarantee that it will continue to go your way forever. In fact the complaint about many of Bush's judges is that they seem to be activist in support of political aims that activists don't like. But the Democratic party looks funny trying to be the rule of law party after its modern embrace of activist judicial philosophy.

Tom Tomorrow's take on the finger pointing above

I've been away from the computer, so my apologies for returning so late to this. However, I strongly disagree with the notion that the push to more rights (or possibly "universal human rights") for the individual is the same as "This is the similar to the really bad 'why should I care about civil rights and the police since they are arresting criminals' argument." I want everyone in the world to have the right to be tried by a legal system that has appropriate mechanisms for the introduction of evidence and for confronting one's accusers. I want everyone in the world to have the right to legal counsel. I'm headed out the door right now, but I would appreciate you explaining to me why you feel wanting this is the same as the argument you cite.

Perhaps saying that these things are 'inevitable' is a little too strong, but they are inevitable from the point of view that if trends go the opposite way, none of us would be want to live in such a world.

The comments to this entry are closed.

Blog powered by Typepad