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Saturday, May 21, 2011

Beldar still opposes filibusters of judicial nominees by either party

Were I a U.S. senator, I would have voted against, and spoken out in bitter and profound opposition to, the confirmation of Berkeley Law Prof. Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit.

I nevertheless join my good friend Hugh Hewitt, for essentially the same reasons he states, and that I've blogged about before: We both regret the "new norm" under which GOP senators — in explicit payback for past and vastly more egregious abuses by Dems — have filibustered a judicial nominee to prevent the Senate from giving an up or down vote as part of its constitutional "advice and consent" responsibilities.

I'm not angry at my home-state senator, John Cornyn, for going along with Minority Leader McConnell on this. (Sen. Hutchison is shown as "not voting," but I haven't looked into why.) I certainly would have encouraged, and participated actively in, using the Senate debate to express opposition to this nomination, because it's one that only a fraction of the American people will ever focus upon either way, and that's a damned shame: A shockingly bad nominee like Prof. Liu ought be hung around Obama's neck for November 2012 to illustrate the likely consequences to the federal bench of returning Obama to office.

Goodwin Liu prepares to testify in the U.S. Senate (AP photo)

Yes, giving someone like Prof. Liu life tenure on a federal appellate bench is a very stiff price to pay to vindicate this principle. But it's the price built into the constitutional system: Elections have consequences. So after very thorough debate, I would ultimately have voted for cloture were I in Sen. Hutchison's or Sen. Cornyn's shoes. The Senate's obligation is to serve the Constitution and, through it, the senators' constituents (collectively, "We the People") — and that remains true even when the urge, and the practical political need, is to dish out some pay-back.

I therefore also agree with Hugh that "the senior members of [both parties in] the Senate ought to meet to consider a formal rule change that will return the body to its long-established practice of giving all judicial nominees who emerge with a recommendation of confirmation from the Judiciary Committee an up-or-down vote." Do your damn jobs, folks.

Posted by Beldar at 04:52 PM in 2012 Election, Congress, Law (2011), Obama, Politics (2011), SCOTUS & federal courts | Permalink


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(1) Beldar made the following comment | May 21, 2011 6:50:58 PM | Permalink

Editing note: The italicized sentence above ("elections have consequences") added for clarity a couple of hours after this was originally posted.

Also: As I've explained before at more length, I'm not against all filibusters by any means, and my view of how my senators should "do their jobs" includes principled opposition to, and votes against, bad legislation and positions.

But the Senate's constitutional role with respect to legislation is different than it is with respect to nominations and treaties. Actions on judicial nominations are particularly critical to the continuation of a coordinate branch of government (the judiciary). That difference is reflected in the Senate's 200+ year history, traditions, and rules — which has always, by agreement and practice of both parties, included the filibuster as an extra-constitutional practice only to be employed on legislation, not judicial confirmations.

Wrecking that tradition by filibustering judicial nominees doesn't just affect those individual nominees. Instead, it fundamentally restructures the constitutional balance and division of power among all three branches of government. That's very powerful mojo, and the sort of thing to be done only by a constitutional amendment (with all the hoops and hurdles that must negotiated in that process).

(2) Milhouse made the following comment | May 22, 2011 2:05:10 AM | Permalink

NO! In principle, judicial nominations ought not to be filibustered; but the Democrats do not play by that rule, and that decision must have consequences too. There is no honour in obeying a rule that the other team flouts; the word for a team that does so is "loser". If there is a move to return to what used to be the norm, it should start with the next president; this president should have his nominations sabotaged by any means available, fair or foul, just to return things to even. Otherwise why should they ever play honourably?

(3) Beldar made the following comment | May 22, 2011 7:44:03 AM | Permalink

Milhouse, if one chooses one's path based on trying to avoid being a "loser," then one has no principles.

What Democrat do you expect to be elected in 2016, whose judicial nominees the GOP will no longer filibuster, when it will be time for the GOP to finally return, unilaterally and as a matter of principle, to honoring the senate's duty to provide a vote on judicial nominees? Who is this Democratic paragon of virtue whom will be undeserving of further retaliation, and how will we know that? What Democrat will ever come to the presidency with substantially cleaner hands than Obama did?

Or do you simply expect the Dems to suddenly become faithful to the Constitution the next time there's a GOP president, because (perhaps) they will like him or her so much better than they did Dubya? Which of the current GOP candidates, if elected over Obama in 2012, will soothe the Dems' instinct for retribution? Your current favorite, Gov. Palin? The Dems are more deranged about her than they were about Bush-43!

No, my friend, your prescription for breaking the ugly cycle is illusory. When and if the cycle is broken, it will be through an act of GOP statesmanship, or a bipartisan deal like Hewitt proposes that's been initiated by the GOP with the GOP promising to "go first" — or else not at all.

I have no illusions about the likes of Al Franken or, for that matter, Harry Reid. I do not suggest that logic or merit, nor the Constitution itself, can be used to persuade them to behave in an honorable fashion of their own accords. ("Play" is very much the wrong word to use in this context.)

But the constitutional structure does provide a remedy for the Dems' consistent abuse — not by granting the GOP an opportunity to return abuse, because, once again, the filibuster is an extra-constitutional creation. Rather, the correction available through constitutional means is via the voters.

The GOP must promote, and live by, the principles of fidelity to constitutional government — not only because that ought, over time, to attract more votes, but rather, and primarily, because that is best for the country in the long run.

(4) Harold made the following comment | May 22, 2011 11:49:02 AM | Permalink

When the Dems started filibusters against udicial nominees, the squishes, the Repub members of the band of 16 or whatever number it was, allowed them to get away with it. And the Dems expected, based on past experience, that the Repubs would play nice.

They didn't, and the nation is shocked, SHOCKED!

60 votes is now the up or down vote in reality, bought and purchased by the Democratic party in the senate. If a judicial nomine cannot get 60 votes, they're not going to be a judge.

If you're going to lay blame for the current situation, that's where to place it. The Constitution doesn't call for 60 votes, teh rules of the senate do. And the senate is allowed to set its' own rules.

(5) Adam made the following comment | May 22, 2011 11:41:40 PM | Permalink

Placing blame isn't really the point AFAICT. The point is to have a smoothly functioning Judicial branch.

I'm all in favor of such a bipartisan agreement. I'm not sure I like the concept of fillibustering *at all*, much less over judicial nominees.

(Also, the fact that "Advice and Consent" is the technical term for the process makes me even more certain that I got a 5 on my Gov. AP! Yay!)

(6) Beldar made the following comment | May 23, 2011 12:46:37 AM | Permalink

Adam (#5), I'm glad to hear about the advanced placement test.

Robert Caro's "Master of the Senate" -- the part of his multi-volume (and still incomplete) biography of LBJ which covers LBJ's years as senate majority leader, during which time LBJ became probably the single most consequential and masterful legislator in American history -- does a fabulous job of explaining how the filibuster evolved and its role in American history and society.

It's an extra-constitutional amplification of differences between the chambers that were intended by the Framers, and like the six-year election cycle for senators, it has historically preserved the Senate's role as the "saucer" in which to cool the "hot coffee" spilled by the "People's House." Its whole rationale is to be an institutional speed bump, and that is a valuable thing. I would not like to see it lost in total.

But yes, these successive wars over judicial nominees to the district and circuit courts are reaching the point that they are not just threatening to interfere in, but actively interfering with, the smooth functioning of the judiciary.

(Update @ wee-smalls: It suddenly occurs to me, Adam, that you may never have even seen anyone drink coffee from a cup and saucer, and that metaphor may make no sense to you at all.

But once upon a time, when use of both cups and saucers were more common, sometimes people would intentionally pour a splash of coffee from the cup into the saucer precisely to increase the surface-area to volume ratio to speed cooling. Once it was cooled, they could either then tip the saucer's contents back into the cup to dilute the heat of what had been left there, or simply sip it from the saucer, which was common but not exactly mannerly.)

(7) Gregory Koster made the following comment | May 23, 2011 12:56:13 AM | Permalink

Dear Mr. Dyer: "Do your damn jobs, folks."

What is the Senate's "job" concerning federal judicial nominations? Article II Section 2 tells us:

"He {the Prez--GJK} shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for..."

Tell me, was the Senate "Advised" of Liu's nomination before it happened? Specifically, were the minority leader, Mitch McConnell, or the ranking minority member of the Senate Judiciary Committee, Charles Grassley notified of the nomination before it happened? If not, how is the Senate to "Advise?"
Next, "Consent." I doubt if the most literal originalist would holler that the word means the Senate has to consent to any nomination the Prez sends up. So, given that Liu's nomination was likely not discussed with the minority in advance, what's the minority to do?

Your focus on the Senate is much too narrow. The problem is the dreadful appointments being sent up by the Prez. "Shockingly bad" to describe Liu is mild stuff. "From Berkeley" would be better. Better still, read what the old boy had to say when kicking Sam Alito was every liberal's dream. An agreement between the parties in the Senate does no good if Liu style bigots keep getting sent up.

I am glad you aren't naive about Harry Reid, who has just been reelected to the Senate and hence is at a local maximum of "What do I care about the voters?" Just for fun, would you write a naive take on this so we can compare it.

You want to break the cycle? One promising method of attack is to invoke Parkinson's Law: Work expands to fill the time available. Substitute "clerks" for "time" and you have it in one. There used to be a saying, "You don't have to make a federal case out of it," meaning don't go to extreme lengths. That's no longer true. The federal judiciary have their noses in dam near everything, and to less and less effect. Don't believe me? Look no further than the Supreme Court's treatment of interrogation at Guantanamo. Can you give me any clear guidelines derived from the Court's i.e. Anthony Kennedy's clerks rulings in this matter? Or, in a different system, the Indiana Supreme Court's notion that Hoosiers have no right to defend themselves. Even the Indiana Atty Genl gagged at this bunkum. Who can doubt that Liu, nominated for what we hope would be a short life, would be a wild man, giving the works to any cause to the left of Rachel Maddow?

The filibuster is NOT extraconstitutional. Article 1 Section 5 paragraph s:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."

There's your constitutional authorization for a filibuster, a dam site more firmly grounded than the penumbras and emanations that created ROE v. WADE.

"Rather, the correction available through constitutional means is via the voters." Tell me again, how Liu is to be extruded by the voters?

What check is there on the judiciary? You comment "The GOP must promote, and live by, the principles of fidelity to constitutional government — not only because that ought, over time, to attract more votes, but rather, and primarily, because that is best for the country in the long run." Remember your Charles Evans Hughes who laughed:

"“We are under a Constitution, but the Constitution is what the Judges say it is.”

Where's the check on the judiciary run amuck? The coordinate branches have weapons to defend themselves. The citizenry does not. Think either of us middle aged white men would ever get a fair shake from the likes of Goodwin Liu? Not bloody likely.

I expect the Democrats will give up when a big batch of their judges and bureaucrats are blocked. That's got to happen now, as it is likely that the Senate will flip to GOP in 2012. Should The One be reelected, he'll be forced to stop sending up fanatics---they won't be considered. But today, he has plenty of incentive to send up zanies:

a) it fires up his zany base
b) it keeps the Ivy League fanatics, all thirsting for appointments with power, in line
c) he might be successful in getting some in, who will continue their war on America for years after The One is in Hawaii
d) even failures can be used by the reptile press to bash the GOP.

"What Democrat will ever come to the presidency with substantially cleaner hands than Obama did?"

Cleaner hands? The One was rated the most partisan Senator while in the Senate. His actions since then have been a flood of bad faith (the Black Panther voting suppression case) and accusations that the GOP and the Tea Party as enemies of the Republic. The only other Dem cnadidate in 2008 who could have been worse was Dennis Kucinich.

I will point out to you Robert Axelrod's instructive book THE EVOLUTION OF COOOPERATION which showed that one robust strategy for cooperation was "tit for tat" i.e. cooperate on the first move, and then do whatever the opponent did on the previous move. For judicial nominations, that would mean the GOP confirming The One's nominees, but if the Dems did not reciprocate later on, not confirming Dem nominees. This short summary does not begin to do justice to this book.

So far as the "smooth functioning" of the judiciary goes, the Constitution was designed to make government awkward. The smooth functioning you are hollering for is going to bring bad results e.g. Indiana's "To Hell with the Fourth Amendment" forward faster. No no, down with the minority of bad judges----and the huge majority of decent judges who enable them.
Sincerely yours,
Gregory Koster

(8) Beldar made the following comment | May 23, 2011 12:57:36 AM | Permalink

Harold (#4): I appreciate the comment but respectfully disagree if, and to the extent that, you intend to endorse the continued use of filibusters against judicial nominees. (If you're merely arguing to fix blame for this new practice, we're in agreement about that.) Filibustering judicial nominees puts political fighting — even over important matters, and judicial nominations are very important indeed — ahead of fidelity to constitutional responsibilities and duties of the branches of government.

Conservatives ought be very concerned about the long-term effects of that. Eventually a day will come when there is enough political traction against senate filibustering that the senate rules will be amended to do away with the filibuster altogether. The 60-vote current standard is actually relatively new, dating back only to 1975. Previously it was two-thirds. Nothing in the Constitution would prevent the supermajority requirement for cloture to be eliminated from the Senate rules entirely. And that favors, by definition, progressives who want to see the senate pass a lot of controversial legislation even by very close margins.

You don't like Obamacare? It would be 10,000 times worse but for the existing cloture rule (which, you'll recall, Obama/Reid/Pelosi had to use tricks to get around after Scott Brown's election).

If one values the legislative filibuster -- and I do -- one ought to oppose the judicial nomination filibuster.

[Edited for content in the wee-small hours to clarify that I'm not sure if Harold is endorsing the practice or just fixing blame for its adoption.]

(9) Beldar made the following comment | May 23, 2011 1:19:27 AM | Permalink

Mr. Koster (#7): "Extra-constitutional" simply means something outside the Constitution. The Constitution permits the Senate to fix its own rules, yes, but doesn't mention, much less require, a supermajority vote on cloture.

I think you've confused taking advice with giving notice (advising). The nomination advises the Senate who the nominee is; thereafter the Constitution contemplates that the Senate give or withhold its consent; withholding consent amounts to advice from the Senate to the Executive that this nominee isn't the sort whom the Senate is willing to confirm into office. An up-or-down vote isn't specifically mandated, but it is necessarily implied by the process, and the process must be completed — ultimately by the confirmation of a sufficient number of federal judges for the judicial branch of government to continue to exist. This is among the Senate's most grave and solemn constitutional duties, and there is good reason that for most of this country's existence the Senate's performance of that duty has never been blocked by either party — even during the most heated of political battles.

The voters' correction is not to the lifetime-appointed judges, but to the executive who nominates them and/or the senators who confirm them. You know these to be structural compromises built into our system of checks and balances, and fundamental to that system. Again: Elections have consequences! It is tautological but profoundly true that the way voters change things is with their votes. And if one doesn't want more nominees like Goodwin Liu, the remedy is to go campaign against Obama and against the Democratic senators who'd vote to confirm such nominees.

You mis-read me to be implying that Obama came to office with clean hands on the subject of judicial nominees. Exactly the opposite is true; Obama voted against Chief Justice John Roberts, for crying out loud, while simultaneously admitting that Roberts was extremely well qualified. My point instead is that any Dem candidate in 2016 who seeks to follow Obama would be unlikely to have any cleaner hands: Almost all Obama's fellow Democrats have given up any credible pretense that their positions on judicial nominees are based on anything other than the most binary and simplistic factor (whether the nomination came from a GOP or Dem POTUS). That's why I think Milhouse's suggestion (that the cycle might play out naturally once conservatives no longer need to demand pay-back for Obama's actions) is improbable.

The number of vacancies on the district and circuit court benches in some parts of the country is becoming quite alarming. It is already causing what we might call forced judicial rationing. That means, among other things, that cases involving civil litigants have to wait while the criminal docket gets processed. The quality of justice suffers, Mr. Koster. No one benefits from a nonfunctional federal judiciary.

(10) Rodney Graves made the following comment | May 23, 2011 8:08:15 AM | Permalink


Ideally there should be no Judicial filibusters.

Realistically, once one party has gone there (and not just once, as you pointed out) it (judicial filibusters) have become an accepted part of the process. Unless the party that started the ball realizes that it injures them as much as it has injured their opponents, they can be relied upon to continue using it to their advantage.

Nor do I believe a rules change is likely, and a gentleman's agreement doesn't cut it. Absent a teutonic tectonic shift in the composition of the Senate, the Judicial filibuster is here to stay.

(11) steve made the following comment | May 23, 2011 8:24:35 AM | Permalink

Since the Senate can always eliminate the filibuster, the filibuster is simply the Senate adopting a position that they won't provide 'consent' on a nominee if at least 41 of their colleagues are opposed.

It isn't so much that the filibustering Senators are holding things up, it is that the 51-59 Senators in support of a nominee aren't willing to approve a nominee if that many of their colleagues object.

Rather than condemn the practice, I think you should applaud it, as it is a not-often seen graciousness on the part of the majority.

(12) stan made the following comment | May 23, 2011 3:00:01 PM | Permalink

You have to play the game by the rules that are in place. To do anything less is a breach of your commitment to the voters who elect you. Some people hate the designated hitter. But to not use the designated hitter puts their team at a serious disadvantage. The proper path -- play to win within the rules and work to get bad rules changed.

Allowing the Democrats to get away with wholesale breaking of the rules without payback merely encourages more rulebreaking. Anyone who truly desires that good rules be put in place has to celebrate when those who transgress are made to pay for those transgressions.

Refusing to discipline the transgressors on the grounds that one prefers to pretend to live in ideal world makes as much sense as the argument that spanking is wrong because it teaches violence to kids. Or the stupid death penalty argument that it is wrong to kill someone to show that killing is wrong [apparently it is also wrong to imprison a kidnapper or impose financial penalties on a thief].

If you want the rules changed back to a more ideal situation, you have to make the Democrats see the error of their ways. Beldar, your proposed course of action has no chance of showing them their error.

(13) Jim Howard made the following comment | May 23, 2011 4:14:41 PM | Permalink

It is inconceivable to me that the Founders ever imagined that Federal Judges would have almost absolute power to legislate from the Bench, as they commonly do now.

Because today's Federal Judges have so much unchecked power I think that a de facto requirement for a super majority to confirm them is a very necessary check and balance in todays world, and should be continued.

(14) Beldar made the following comment | May 23, 2011 4:50:55 PM | Permalink

Mr. Howard (#11), thanks for the comment. I absolutely, positively share your concerns about judicial activism.

But with respect, your assertion is a non-sequitur.

Making it tougher for both sides to get judges confirmed doesn't mean that the judges who manage to get through will be judicially modest. Rather, it means raw partisanship will play a larger role in confirmations.

If judicial filibusters remain common, Dems will continue to use them to block GOP nominees who are judicially modest. The only GOP nominees they will vote to confirm will become those who are incipient David Souters. GOP presidential candidates since Bush-41 have consistently run on one campaign promise about judicial nominations: "No more Souters!" Quibbles about the withdrawn Miers nomination aside (and I'm in a vocal minority on that one), Dubya kept that promise. Judicial filibusters will make it impossible to keep that promise — and not just for SCOTUS nominees, but for critical nominees to the district and circuit court benches who actually conduct 99-point-something percent of the business of the federal courts on a day-to-day, case-to-case basis.

And frankly, since GOP senators historically are less prone to play politics — compare the confirmation votes for Bork and Ginsburg, or compare the votes for Roberts/Alito with those for Sotomayor/Kagan) — judicial filibusters hurt conservatives more than they hurt progressives. The Dems are less principled and do pure partisan politics more aggressively and relentlessly than the GOP does. As proof, I can show you a a large handful of spectacularly well-qualified Bush-43 nominees to the courts of appeal whom the Dems successfully filibustered, whereas the Dems can point to exactly one such Democratic judicial nominee who's been filibustered in the entire history of the Republic (i.e., Goodwin Liu).

Many observers, both left and right, have observed that GOP nominees have a much more pronounced tendency to "drift left" than vice versa for Dem nominees. Unfortunately, that's a function of the institution — life tenure eliminates the penalty for judicial activism, and the legitimate power federal judges wield, plus their trappings of power, all tend to encourage the use, and eventually the over-use, of that power. The sorts of non-stealth GOP nominees who can be counted upon to resist that power — the Rehnquists and the Scalias and the Thomases and the Robertses and the Alitos and, yes, the Borks — typically are easier targets for the Dems. Whereas they can nominate a Kagan or a Sotomayor who promise to be judicially conservative, and then of course break that promise from day one on the bench, and those judges get confirmed.

Nevertheless, eventually, if the GOP continues to use judicial filibusters — especially if the GOP starts matching the Dems in their hyper-aggressive use — then the Dems will demagogue the issue and use it as an excuse to do away with filibusters altogether, including legislative filibusters. Their "nuclear option" won't carve out and preserve legislative filibusters (as the GOP's proposed "constitutional option" would have done before the Gang of Fourteen deal). Instead it will simply do away with the supermajority cloture requirement for everything. And that would be an incredible disaster for conservatives that would by no means be limited to judicial nominations. (See my comment above re how much worse Obamacare would have turned out but for the moderating influence of the filibuster.)

Other than short-term "payback," there's simply no upside to the GOP from judicial filibusters, and the long-term downsides are enormous. We don't want this new development to become the "new normal."

(15) Beldar made the following comment | May 23, 2011 5:24:58 PM | Permalink

Stan (#12): This isn't about baseball. It's not a game. It's not even the sort of fantasy world of major league baseball. This is not a kindergarten playground, no matter how immature our opponents may sometimes act.

This is about the Constitution, not designated hitters. Please stop trivializing the Constitution, at least in the comments to this post.

The Constitution necessarily implies a constitutional duty on the part of the Senate to render an up-or-down vote on judicial nominations. That is the pertinent set of rules, and not one commenter here has even attempted to rebut that central point. Can you? I don't think so, because you can't re-write the Constitution's finely crafted checks and balances.

The Constitution doesn't contemplate that parties will discipline each other. (The Constitution doesn't mention parties.) Rather, as I've now said about two dozen times, the Constitution puts it in the hands of voters to correct abuses. Our remedy is not paddling Al Franken and his ilk, no matter how tempting that prospect might seem. Our remedy is to get voters to vote Al Franken and his ilk out of office.

Throughout the entire history of the Republic until Bush-43's term, there was never a successful filibuster of a judicial nominee. That was the status quo. First the Dems, and now we, have gone off-track. But the fact that we've gone off-track is no good reason to stay off-track, sir.

And you (and others; I'm just venting on you because you're being repetitive) are ignoring everything else I've written to explain why being off-track is desperately bad for both the nation and for conservatives.

I apologize for growing gruff, but I'm weary of "they did it first and they're the bad guys" arguments and their variations. I'm not going to respond to any more of them, because I addressed that in my original post and in several further comments. If that's the best someone's got, then please don't waste my bandwidth repeating it again.

(16) Rodney Graves made the following comment | May 23, 2011 11:24:14 PM | Permalink

The cheaters gambit and reciprocity.

(17) Gregory Koster made the following comment | May 24, 2011 2:01:17 AM | Permalink

Dear Mr. Dyer: Without trying to to be testy, I murmur BUNK:

a) to your assertion "The Constitution necessarily implies a constitutional duty on the part of the Senate to render an up-or-down vote on judicial nominations. That is the pertinent set of rules, and not one commenter here has even attempted to rebut that central point."

No. The Constitution is silent beyond "advise and consent." I can assert, just as plausibly, that a filibuster is implied for bad nominations that can't be stopped because of a transient majority. Your notion that the Prez "advises" the Senate by sending up a nomination blind is preposterous. It's as if I decided to hire you as my lawyer, but forget about engagement letters and all that red tape paperwork. Instead, I'll show up at the courthouse, and if you are there, you'll be my lawyer. In turn, I won't tell you how I"m going to plead until you hear me say "Guilty" or "not Guilty" That'll tell you how to plan to try my case. How successful do you think such a relationship would be? Why do you think blind judicial nominations would be any more successful?

b) to your writing "Elections have consequences" but the only electoral consequences you mention flow from the 2008 election. What of the 2010 election? Shouldn't their consequences from that, e.g. Goody Liu being filibustered because he's a radical fanatic.

c) to your claim that no judge has been filibustered except Abe Fortas until now. Hmm:

i) Eisenhower nominated Earl Warren in September 1953. He wasn't confirmed until March 1954. Care to tell us why?
ii) None of Andrew Johnson's judicial nominees were confirmed after the middle of 1867 to the end of his term. He'd send nominations to the Senate, and there they sat. Grover Cleveland had the same trouble in 1895-96. Technically these aren't filibusters, because the Senate isn't acting on the nominations.

This underscores my point: the Liu filibuster is only caused in part by bad feeling among the Senate. It is also caused by his being nominated in the first place. Had The One accepted the consequences of the 2010 election, he would never have nominated Liu, and no filibuster would be happening.

d) to your logic that says the Dems at much better at judicial partisanship than the GOP, so therefore the GOP must conclude an anti-filibuster agreement that the Dems will honor? Say what? Why should we trust Senate quacks such as Schumer or Whitehouse to live up to such an agreement? You also do not address the well known point that appeasing bullying leads to more bullying, doubtless because it is extraconstitutional. An as you describe agreement may be possible, but it can't rely on the the consciences of the Democrats. It will rely on the knowledge that the filibuster club will be used against them because it has been in the case of Liu, and as many other bad nominations as it takes before they decide to behave.

e)to your agitation about a scarcity of judges. I cite the great, if extraconsitutional, observation of the speaker of the Texas House, Coke Stevenson: a fist fight broke out on the floor of the House. Someone asked Stevenson, the Speaker, why he didn't stop it. "As long as they are fighting, they aren't legislating," said Coke. Yes. You must remember that a great many of your readers (I am one) aren't practicing lawyers, dependent on courts for a sizable chunk of income. We feel the effects of judicial imperialism without getting any dough or prestige in return. Your protests about the threat to the judicial system reminds me of Wisconsin public employees asserting, "How can our salaries be too high? We pay taxes too."

f) to your writing that the norm in the Republic's history has been no judicial filibusters. It has also been the norm in the Republic's history that the judiciary was, in Hamilton's phrase, the least dangerous branch, devoid of the power of sword or purse. That's no longer true. How many federal judges could control school districts and bus children all around the countryside before the 1970s? Has the rise of the judicial priesthood, bent on excluding as many as possible (all sitting members of the Supreme bench have been circuit court judges, no one else need apply) grabbing more and more power while providing murkier and murkier guidance connected to increasing judicial filibuster activity?

Sincerely yours,
Gregory Koster

(18) Beldar made the following comment | May 24, 2011 7:47:59 AM | Permalink

Mr. Koster, you write, "I can assert, just as plausibly, that a filibuster is implied for bad nominations that can't be stopped because of a transient majority." You might so assert, but you'd be obviously wrong, and inexcusably so for a man of your intelligence. Your theory would effectively re-write the Constitution to bind the Senate to a supermajority vote on judicial nominees; your proposed theory is thus not necessarily implied by the Constitution, but, rather, inconsistent with it.

Your characterization of my arguments is so badly wrong that it borders on bad faith. I'm not arguing in favor of "blind judicial nominations," nor am I trying to do away with the requirement that the POTUS obtain the consent of a senate majority to be confirmed. I'm arguing in favor of the system as it has operated for the first 200+ years of the United States, in which there were zero successful judicial filibusters.

Your point about the "rise of the judicial priesthood" fails to take account of the time-line. Judicial filibusters began in this century; that of which you're complaining goes back at least to the 1950s by your own examples, and in fact goes back much longer than that. I would see corrections made to that problem through constitutional means — electing presidents and senators who respect and abide by the Constitution, and who will appoint and confirm judicially modest judges — not by tricks to supersede it.

The rest of your points are even less persuasive and continue to ignore my substantive arguments rather than trying to meet them. And your suggestion that a personal financial bias affects my views is frankly offensive. I don't see the connection, but I certainly don't conceal how I make my living in this blog, and if you think it renders my views unreliable, then don't read my blog.

Mine, sir, is the conservative position. Filibustering judicial nominees is the radical one. Embrace it if you choose. But if you're going to argue your position here, come up with arguments that are consistent with the Constitution, and don't misstate what I've said or insult me personally. If my insistence upon that strikes you as merely "testy" on my part, then you underestimate substantially my aggravation.

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