I Say Uncle

by publius

Sometimes you only need to read the first sentence of a Powerline post to know you've read enough. John Hinderaker begins his "Is This a Coup? If Not, What Is It?" post with:

The Democrats' unconstitutional usurpation of power continues:

Despite the tantalizing colon, there's no reason to go on. Only darkness and pain await you.

Comments

[rilkefan]

The Democrats don't appear in the constitution - the framers were against factions in any case - so obviously anything the Democrats do is unconstitutional.

[Jeff Fecke]

But it's a coup, because the Democrats could...choose not to approve Supreme Court appointments!!!!eleven!!!!! I mean, my God, what's next, the Senate charts a slightly different course on capital gains taxes? This is madness...madness!

[Larv]

In a couple of years, Powerline will be revealed as a truly great spoof, and we'll all laugh about this.

[OCSteve]

Not that I’m a powerline fan, but:

“We should reverse the presumption of confirmation”

Nothing wrong with that at all?

[Turbulence]

I don't see anything wrong with it, but since proving a negative is impossible, if you think there's something wrong, why don't you explain what it it?

I do think there's been a presumption that if the President appoints someone, they're basically sane and should be given the benefit of the doubt. That's probably true for most Presidents, but really, if this one were to appoint another USSC Justice, the Senate should give them extreme scrutiny because, let's face it, Bush isn't going to appoint a sane jurist. He's going to screw it up just like he's screwed up everything else.

[cleek]

unconstitutional usurpation of power

someone needs to grab their Constitution and look up "Executive Privilege".

[Ugh]

Well I think A$$rocket is as insane as the next person, but the idea that if, say, Stevens were to retire tomorrow that the democrats would refuse to confirm a replacement until January 2009 seems a bit extreme (as is Schumer's "The Supreme Court is dangerously out of balance." statement, which, in perhaps the most sane statement I've ever read from Mr. Rocket, he notes that 5-4 hardly seems to get there).

More likely, Bush tries to nominate another preznit is teh aw3summm!!!1! justice and Congress refuses to confirm, resulting in some less extreme candidate.

Of course, A$$ calling it a coup is crazy batsh1t insane, like his usual gruntings.

[CharleyCarp]

Why should there be any presumptions at all? I don't see any constitutional basis for one. The point of dividing power is prevent any one branch from accruing too much.

I can't wait to see how unhinged these guys get when President H. Clinton starts using all this executive power these guys say is inherent.

[KCinDC]

More likely, Bush tries to nominate another preznit is teh aw3summm!!!1! justice and Congress refuses to confirm, resulting in some less extreme candidate.

You mean "resulting in a recess appointment."

[Lamont A Cranston]

>More likely, Bush tries to
>nominate another preznit
>is teh aw3summm!!!1! justice
>and Congress refuses to confirm,
>resulting in some less extreme
>candidate.

Another Sam Alito?
If Bush gets another nomination, look for the first candidate to be a stalking horse, just like Miers.

[Tim]

Never let infants play with scissors if you can help it.

[john miller]

OCSteve, I agree with CC that the quote you used is actually quite correct. There should be no presumption of confirmation.

And actually, do you think Schumer would be saying anything at all like this if it weren't for this administration's total disregard for the Constitution and Congress?

And it is hardly something for the right wing to compalin about considering their blocking of many (and I even think it might have been close to a majority) of Clinton's nominees for judgeships, without, in some cases, even allowing hearings to be held.

[CharleyCarp]

If Bush gets another nomination, look for the first candidate to be a stalking horse, just like Miers.

AGAG!

[KCinDC]

Why not Miers again?

[hilzoy]

I nominate Jenna.

[rea]

The "presumption of confirmation" only works if both parties follow it. The Republicans systematically bottled up Clinton's nominees in committee--more than 60 of Clinton's appointments were rejected in this fashion.

If you think a "presumption of confirmation" is a good thing, then you ought to be calling for rejection of about 60 Bush nominees--those seats are rightfully a Democratic president's to fill.

If you don't want balanced restored before going back to the "presumption of confirmation" that obtained before Clinton--well, then it's not a matter of principle for you at all--it's a matter of rationalizing your side's seizure of the court system.

[David]

Be fair, Pub: you only made it through the first full clause.

[mss]

I think it would be helpful if we thought (and talked) about Supreme Court nominations just like any other "take it or leave it" bargaining problem. The president proposes a Justice. If the pivotal voter in the Senate prefers that Justice to the status quo (e.g., a 8 person court minus Stevens), they should probably take the offer. Otherwise, they should vote it down, and wait for the president to get realistic.

Obviously, this model is an oversimplification; for example, near an election, the Senate pivot might prefer waiting in the hopes of getting a new president or a new pivot.

But I think it is a much better model than vague platitudes about "qualified candidates". The Supreme Court is a political institution which makes ideologically predictable decisions. The sooner all of us---especially Senators---start talking matter-of-factly about needing nominees the Senate would prefer to an empty seat, the better.

[Sebastian Holsclaw]

Ok, first we can all agree that it is nothing like a 'coup'.

But second, I'm pretty sure that a blanket statement saying that, sight unseen, Democrats just won't confirm anyone to the Supreme Court nominated by Bush really is a serious break in the Constitutional order.

"And actually, do you think Schumer would be saying anything at all like this if it weren't for this administration's total disregard for the Constitution and Congress?"

Actually yes I do. This has pretty much nothing at all to do with things like torture and wiretaps and everything to do with things like abortion.

A 5-4 court isn't 'dangerously unbalanced'. A 6-3 court won't be either. Bush will have had 3 nominees on the Court if someone else steps down. That isn't anything like say dangerously unbalancing it with 7. Surely the US would never put up with that....

[cleek]

But second, I'm pretty sure that a blanket statement saying that, sight unseen, Democrats just won't confirm anyone to the Supreme Court nominated by Bush really is a serious break in the Constitutional order.

maybe. but Schumer didn't say that. he merely suggested any further judges should be treated with skepticism instead of assuming the confirmation process is a simple formality.

coup!

defaulting everything to a claim of executive privilege? not a coup. filling the DOJ with partisan hacks? not a coup. politicizing the entire executive branch? not a coup. getting the USSC to issue a One Time Only ruling to get Bush in the WH? not a coup. tripling the number of filibusters? not a coup.

[Sebastian Holsclaw]

"but Schumer didn't say that. he merely suggested any further judges should be treated with skepticism instead of assuming the confirmation process is a simple formality."

That isn't what he said.

[cleek]

That isn't what he said.

of course it is.

politico:

"We should reverse the presumption of confirmation,” ... “Alito shouldn’t have been confirmed,” Schumer said. “I should have done a better job. My colleagues said we didn’t have the votes, but I think we should have twisted more arms and done more.”

Schumer said there were four lessons to be learned from Alito and Roberts: Confirmation hearings are meaningless, a nominee’s record should be weighed more heavily than rhetoric, “ideology matters” and “take the president at his word.”

he's saying the Dems took the president and the nominee at their word, instead of treating them with skepticism. and now he says they shouldn't. coup! constitutional crisis! OMG!

only in GOP FantasyLand does "advice and consent" mean "accept what's given".

[Sebastian Holsclaw]

My eyes just roll in the back of my head when I hear that the Roberts nomination needs 'lessons' for Democrats. It is almost as if they think conservatives shouldn't ever be allowed on the Supreme Court. Roberts is a very clear example of an excellent judge of conservative temperament that should be nominated to the Supreme Court when there are Republicans in the White House.

I think the same is true of Alito, but if you can't even agree to Roberts, all you are saying is that only liberals belong.

Which is of course exactly what Schumer is saying.

[cleek]

Which is of course exactly what Schumer is saying.

what he's saying is exactly what his words say.

he's saying Alito's and Robert's records after appointment reflect their records before appointment ("a nominee’s record should be weighed more heavily than rhetoric"), but those records are different than how they testified at confirmation ("Confirmation hearings are meaningless"). and that in future, more attention should be paid to those prior records.

that's the lesson.

shrieking about a "coup" is hysterical overreaction.

It is almost as if they think conservatives shouldn't ever be allowed on the Supreme Court.

elections have consequences. want more conservatives? pursued more people to vote for Republican Senators.

[KCinDC]

Cleek, the first sentence of the Politico article is

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush "except in extraordinary circumstances."

That's less than Sebastian said he said, but definitely more than you said he said. Of course, it would help to have the complete context of the quoted bit rather than relying on the Politico's interpretation.

[Sebastian Holsclaw]

"shrieking about a "coup" is hysterical overreaction."

I said that already. Of course it isn't a coup.

"but those records are different than how they testified at confirmation"

This is a great Democratic Party talking point, but I don't see how it is true. What ruling do YOU believe is different from what testimony?

[Ara]

More thn slightly off topic, but since this is a thread about Dems: is anybody here supporting Hillary? She has this commanding lead in the polls and yet I don't know a single Dem who isn't terrified of her nomination.

[KCinDC]

I found more context:

"Given the track record of this president and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least, I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances," Schumer told the group in prepared remarks.

So I think the Politico has it right.

[KCinDC]

Ara, you need to talk to more Democrats. I've been running into more and more Hillary supporters. Granted, they're still a small minority among the folks I talk to, but it's not as surprising to find one as it used to be.

[Nell]

"but those records are different than how they testified at confirmation"

This is a great Democratic Party talking point, but I don't see how it is true. What ruling do YOU believe is different from what testimony?

Actually, Sebastian, it's an Arlen Specter "talking point". He had at least two recent rulings in mind as contradicting testimony before his Judiciary committee.

[Nell]

The story in which Specter talks about this is also from the Politico, here.

[rilkefan]

I think it would be extraordinary if Bush nominated a moderate conservative justice.

Certainly under Clinton it was the case that he picked a nominee and Orrin Hatch said, Sorry, too liberal, here's who I could accept. I don't know if SH thinks that's the right model or not. It seems ok to me.

[Nell]

@Ara: I'm not terrified about her probable nomination, just depressed.

We had a straw poll at the Democratic booth at our county fair last week; Hillary won handily (but the sample was skimpy). I know quite a few Hillary supporters; they're women and/or African-Americans.

The Virginia primary is Feb. 12; with the insane front-loaded schedule now in place, our vote will once again be meaningless. It's an open primary, so maybe that's all for the best.

[hilzoy]

Seb: offhand, I did not interpret Schumer as saying that he won't appoint anyone Bush could conceivably nominate, but rather as making certain assumptions about who Bush is likely to nominate, and saying what his response would be. I don't think he's saying, for instance, that were Bush to nominate Cass Sunstein, he would reject him.

I think the court is way out of whack, and not because I think conservatives don't have a place on it. We now have four justices compared to whom Rehnquist, whom I regard as a conservative, looks like a centrist. You could take these four as having redefined the political spectrum, so that what used to be extreme ideological conservatism is now just plain conservatism, and anything to the left of that, including things that used to count as very conservative, are centrist or liberal. It would be sort of like some people's view of the political spectrum, according to which anyone who criticizes Bush is a liberal, including, say, you, Charles Bird, Dick Lugar, etc., and a group consisting of four die-hard Bush supporters, the three of you, and me would count as "balanced".

Personally, I'd rather resist that.

[KCinDC]

DC and Maryland also have their primaries Feb 12. The idea was that a combined regional primary would attract attention, but now it's the week after Superduper Tuesday, so my vote will be as meaningless as my vote in the general election will be (I can't stand the suspense -- will the Democrat get 93% of the DC vote or only 89%?). Oh, well.

[CharleyCarp]

I'm not terrified of Hillary.

Schumer won't have the votes to sustain filibusters of all nominees, and would have to get Leahy on board to really bottle anything up. I don't agree with Schumer's position here, but I'm also not going to say that it's the caucus' position.

The Republican senators' about face on the need for new judges for the DC Circuit before and after Jan 20, 2001 is shameful enough that I find no need to listen to a single damn thing any partisan Republican has to say about judicial appointments and confirmations. Filibuster of every single judicial nominee would be completely justified as a response to this conduct -- but since our side are the grown-ups here, it isn't going to happen.

What I'm waiting to see is how Alito and Roberts come out of various executive power questions. They were asked quite a bit about this at confirmation, and talked alot about Jackson's concurrence in Youngstown. I'd be disappointed, but not surprised, if they end up disregarding the clear implications of that testimony -- and I'd say that's where Specter is with regard to their testimony regarding stare decisis.

SH, they didn't testify that they are not conservatives, and the objection now isn't that they are conservatives. It is that they represented a certain regard for sd that they don't seem to be showing. Schumer is right to say that records need to be examined, but this is the area where it's going to be the most difficult: you can't what a judge at the SC is going to do in the face of a controlling precedent by what he/she's done on a Circuit Court in the face of a controlling precedent. So you ask them, and hope that the answer they give you is accurate, and not just in the meaning of is is sense.

[Fledermaus]

I'm not terrified of Hillary.

I'm not either, but I'm not thrilled either. I don't think she has the chops to do the big domestic fixes that will be necessary. She also did a nice job of Bush lite with her 'talking to people rewards them' schick. I think we've had about enough of that nonsense.

[rilkefan]

"She also did a nice job of Bush lite with her 'talking to people rewards them' schick. I think we've had about enough of that nonsense."

This is a wild distortion of what she said, of course, and a bigger distortion of the Bush stance, but since Edwards and Richardson (and even a backtracking Obama) agreed with her that the president shouldn't commit to talking personally to dictators without preconditions, I guess you'll have to vote for Kucinich.

[rilkefan]

E.g..

[KCinDC]

Well, I think I agree with that Ezra Klein post, RF (and similar Yglesias posts), but it doesn't say anything about Obama backtracking. It wasn't about a real actual disagreement on that issue, just different interpretations of the question and a desire on Hillary's part to pick a fight with Obama and claim the more right-wing (and thus "serious") side.

And I'm not sure where the "bigger distortion of the Bush stance" is.

[cleek]

What ruling do YOU believe is different from what testimony?

me? i think you should direct that question to Schumer - he's the one who said it.

[Sebastian Holsclaw]

"We now have four justices compared to whom Rehnquist, whom I regard as a conservative, looks like a centrist."

I don't understand what you mean here. Rehnquist looked conservative mainly because he was one of the few dissenting voices in the completely out of control Berger court. It was the Berger court which made so many extremely activist decisions that it laid the groundwork for the coming to power of the Christian conservative movement in reaction to it. Of course Rehnquist looked conservative in that context.

The fact that Rhenquist is considered the outside of acceptable right on the Supreme Court is an excellent illustration of my point about the Court.

[Sebastian Holsclaw]

By all accounts, he seems to think that the segregation rulings and the partial-birth abortion ruling were the crazy ones. And if that is it, Schumer is the crazy one. The partial-birth abortion one not only doesn't overturn Roe, it is right in line with Roe. What it isn't in line with is the free-wheeling abortion on demand that people have turned Roe into in their minds. And the bussing case isn't a dramatic departure either. Bussing was always seen as a drastic REMEDIAL action to fight government segregation. Using it where there had never been government segreagation, and using the ridiculous classification of Asians they was being used in Seattle, is clearly beyond that.

If that is the best you all can come up with, I have a hard time understanding what you are complaining about. In a right wing version of the Berger Court (whose Constitutional methods are well liked around here) those two cases would have easily been transformed into striking down all of bussing and completely obliterating Roe.

Hearing how 'activist' the current Court is by people who support the Berger court on abortion or the death penalty just leaves me cold.

If the conservative Court were pushing its ideology with as little mooring to the Constitution as the lauded Berger Court, you would have a completely different world.

[Nell]

Sebastian, did you read the Politico article I linked in which Specter's concerns are covered?

CharleyCarp conveys the essence of them in his comment, but you should take a look at that before deciding that this is all about Schumer, much less Democrats as a whole.

[rilkefan]

For Obama's backtracking, see the comments made by Axelrod, where he explained that Obama hadn't meant what he said, that he wasn't actually willing to meet with dictators X, Y, and Z in his first year without precondition, but rather that he's going to continue the mainstream practice of diplomacy after the insanity of the Bush years. Calling the mainstream practice of diplomacy, i.e.

But I certainly agree that we need to get back to diplomacy, which has been turned into a bad word by this administration. And I will pursue very vigorous diplomacy.

And I will use a lot of high-level presidential envoys to test the waters, to feel the way. But certainly, we're not going to just have our president meet with Fidel Castro and Hugo Chavez and, you know, the president of North Korea, Iran and Syria until we know better what the way forward would be.

"Bush Lite" is just demagoguery.

[rilkefan]

One last word on the subject - reading the comments at DK, TPM Election Central, Ezra/MY, MyDD on the primary race is just bizarre. It seems clear to me that HRC, Obama, and Edwards are all great Democratic candidates who would put quite similar policies and who have similarly large likelihoods of being elected; and seeing the low level of discourse among groups of supporters of each is pretty discouraging.

[KCinDC]

I think you're putting a lot of weight onto your interpretation of the word "precondition", but I see there's another thread now.

[Jeff]

By all accounts, he seems to think that the segregation rulings and the partial-birth abortion ruling were the crazy ones. And if that is it, Schumer is the crazy one.

The segregation rulings (overturning Brown vs Board of Education) and "partial-birth abortion" ruling (calling it that indicates that this was a political decision, rather than a legal one) were crazy. The fact is that no Bush appointee can be trusted. Not a one.

So why would we trust him to appoint someone whose rulings can't be overturned, or even questioned, and who can't be removed? That is just plain nuts.

[Sebastian Holsclaw]

"The segregation rulings (overturning Brown vs Board of Education)"

If you think it was overturning Brown v. Board of Education, you've been reading propaganda, not the Court opinions.

Which is exactly my point.

[Bernard Yomtov]

Sebastian,

To me Ledbetter is a good example of a very ideological decision. There the conservative majority tied itself into knots, it seems to me, to avoid admitting that issuing a manifestly discriminatory paycheck was not an act of discrimination.

That's not a Constitutional matter, of course, but it does indicate that they are willing to take the conservative position with any excuse they can contrive.

[Justin]

It's interesting that Sebastian thinks of Rehnquist as a centrist. Here's Rehnquist's bio prior to the Court:

After graduation, Rehnquist clerked for Justice Jackson during the Brown term - he became (in)famous for writing a memo in which he wrote:

"I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed....To the argument ... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.["

Rehnquist would later, not persuasively, claim that these were just the views of Justice Jackson, but not his own. In another memo, the man eventually who would become Justice Rehnquist wrote:

"The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time the Court faced the fact that the white people of the south don’t like the colored people: the constitution restrains them from effecting this dislike through state action but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head."

After his law clerk, he acted as a manager of Goldwater's election campaign, where he ran the precurser to what we saw in 2000 in Florida and 2004 in Ohio - that is, through a combination of "poll watching" and "racial profiling."

Amongst the cases he actually dissented from, include not just famous "excess" cases, but cases that are now considered proper judicial mainstream: Wallace, Texas v. Johnson, Eichman, and Romer. To argue that Rehnquist was not racist or extremist is a makable, if uphill, battle. To argue that he was not conservative is to eliminate all meaning from the word.

[rilkefan]

Here's hoping Roberts is ok.

[Sebastian Holsclaw]

I don't argue he wasn't conservative. I argue that he isn't some outer edge conservative, beyond which Supreme Court justices are off limits.

And he still was not nearly as far out of the mainstream as someone like Brennan or Marshall was--both in their preferred policy outcomes and in the methods they were willing to go to get them.

[russell]

Nothing wrong with that at all?

In a perfect, or even normal, world, maybe. In the world we live in right now, not much.

that the democrats would refuse to confirm a replacement until January 2009 seems a bit extreme

That would make it, precisely, an appropriate and commensurate counterbalance to the last 6 years of executive excess.

Why should there be any presumptions at all? I don't see any constitutional basis for one.

Nor I. Anyone who cares to point out the Constitutional text requiring a presumption of consent, please feel free to chime in.

The partial-birth abortion one not only doesn't overturn Roe, it is right in line with Roe.

Agreed.

And the bussing case isn't a dramatic departure either.

Agree again, in principle at least.

I have a hard time understanding what you are complaining about.

Habeas.
Executive privilege.
Stuff like that.

We're approaching the tipping point between executive prerogative and congressional oversight. The boundaries of each will be decided in court.

I don't want another Roberts, Scalia, Thomas, or Alito making those decisions. I have no, absolutely no, problem with the Democratic majority of the Senate refusing to confirm anyone like them.

My druthers, FWIW.

And, on the lighter side:

Why not Miers again?
I nominate Jenna.

Does Bush have a horse named Incitatus?

Thanks -

[Hartmut]

One of Caligula's better personnel decisions, I think ;-)

I hear the Coulter has a law degree (she even co-founded a local chapter of the Federalist Society). How would the Senate react to her being nominated? [no problem to predict the reaction from the mouth-foamers, if any D dares to criticize it].