Judging Amity

Given that numerous bloggers have been linking to Norman Ornstein’s column claiming that the Republicans’ proposal to end judicial filibusters during the current session is unprecedented, as a public service I’ll provide a link to Wendy Long’s refutation of Ornstein’s argument. An interesting irony identified in Long’s article is that one senator who has employed in recent years the Republicans’ proposed means of setting precedents by parliamentary majority is . . . Robert Byrd (D-WV). Enjoy.

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14 thoughts on “Judging Amity

  1. About as ironic as Senator Bill Frist (R-Tennessee) joining other senators to filibuster the nomination of Judge Paez in 2000. About as ironic as the 1968 filibuster of Abe Fortas.

    This whole “nuclear option” thing is ridiculous. The Democrats were wrong to get all worked up about the filibuster and wanting to end it in the early ’90s and the Republicans are wrong today.

    Using the filibuster on seven nominations is neither unprecedented nor unconstitutional. It may be “dirty pool,” but no more than giving Clinton nominees the “blue slip” or refusing to honor a state’s senators’ objections to the nominee (as the Senate has historically done when both of the nominee’s homestate senators objected, and ceased to do with the nominations of both Brown and Saad). When you’re in the minority, you use one tactic; when you’re in the majority, you use another.

    Brown was given a “not fit to serve” rating by the American Bar Association. How in the hell is she even nominated? I ask you. Owens has ethical problems way bigger than Fortas (she’s taken hundreds of thousands of dollars from business lobbies whose cases she then ruled in their favor). How is she nominated? What’s so objectionable about filibustering her if there’s nothing objectionable about filibustering Fortas? Moore, Myers, and McKeague all face similar ethical dilemmas involving donations, lobbying for or legal work for special interests and then ruling in their favor from the bench. McKeague has often been reversed by the very district he is nominated to for “abuse of discretion.” Saad has similar questions raised, but his rulings are (usually) on firmer ground. However, both his state’s (Michigan) senators objected to his nomination. Finally, Griffin has made decisions (such as in applying the Americans with Disabilities act to prisoners) that were contrary to U.S. Supreme Court decisions.

    They all fit Bush and Frist’s ideological profile, but not the profile of people fit to serve on the bench.

    Do conservatives even know who they’re trying to put on the bench when they blindly play “follow the leader” on the filibuster brouhaha?

  2. If all those nominees are so “extreme” and pose such a grave threat to the judiciary and the country, then why have Democrats offered to let a handful of them — Republicans’ choice — come up for votes? If they were SO dangerous, shouldn’t Democrats be opposing votes on every single one?

    That would be the principled approach, but we’ve seen so little principle from Democrats recently that we shouldn’t be surprised when we don’t see it here.

    Say what you will about the Republican position, and despite the position some Republicans have taken in the past, at least their current position is based on a principle — that a president’s nominees deserve an up-or-down vote. That means now and in the future. That means Bush’s nominees and (gasp!) Hillary Clinton’s nominees. That means a GOP-led Senate or a Democrat-led Senate.

    Don’t like the nominees? Don’t like how the Senate votes? Then take it to the voters and win elections.

  3. If all those nominees are so “extreme” and pose such a grave threat to the judiciary and the country, then why have Democrats offered to let a handful of them — Republicans’ choice — come up for votes? If they were SO dangerous, shouldn’t Democrats be opposing votes on every single one?

    It’s called a compromise. It’s what you do when two sides disagree. But the GOP, drunk on power, is unwilling to accept anything but complete and utter submission.

    Say what you will about the Republican position, and despite the position some Republicans have taken in the past, at least their current position is based on a principle — that a president’s nominees deserve an up-or-down vote.

    No, I’m pretty sure this is based on the principle of wanting all of these judges confirmed. The whole “up or down” thing is just rhetoric.

    That means now and in the future. That means Bush’s nominees and (gasp!) Hillary Clinton’s nominees. That means a GOP-led Senate or a Democrat-led Senate.

    Yeah, because, you know, history really backs you up on this one, as James outlined above.

    Don’t like the nominees? Don’t like how the Senate votes? Then take it to the voters and win elections.

    People have. That’s why the GOP doesn’t have a large enough majority to break a fillibuster.

  4. Ah, yes, the Abe Fortas Fortas who lied before the Senate Judiciary Committee, illegally accepted $15,000 raised by his former partners and clients to give some summer school lectures at American University’s law school, and resigned from the court in 1969 after revelations that a convicted shady financier named Louis Wolfson had agreed to pay Fortas $20,000 per year for the remainder of his life (and until the death of his wife if he predeceased her) which he began receiving in January 1966, after joining the Court, and eventually had to return under fire. That Abe Fortas, whom it was such a tragedy to lose. Killed by vicious political chicanery. Such a tragedy.

    The ethics violations of which the Bush nominees have been accused by their most intense political enemies—accused, not convicted or even indicted or even brought before a grand jury—were not matters of personal enrichment as in the case of the sacred Fortas but instead were political campaign contribution questions. Both Democrats and Republicans depend on corporate money to attain their elected positions, judgships included, and Bush’s nominees are definitely no dirtier in this way than Clinton’s were. If these judges have done something on which they could truly be caught out, it is astonishing that their opponents in the Democrat Party have failed to find anything usable in the several years of digging they’ve done.

    As to the claim about Brown, there is no “not fit to serve” ABA rating; the correct designation is “Not Qualified.” Brown was given a passing rating by the ABA, its lowest rating: http://mediamatters.org/items/200504280003.

    Looks like it’s not so much fun being in the minority. Boohoo.

  5. Looks like it’s not so much fun being in the minority.

    Yeah. It’s sure a good thing that the Senate has the centuries-old tradition of the filibuster to protect the rights of the minority. It’s especially useful when the majority is held by such a slim margin. It keeps the senate moderate.

  6. Ah, yes, the sacred, “centuries-old” filibuster rule that is still in force in both the House and Senate as in the first years of the Republic. Ooops, the House hasn’t allowed filibusters since the early 19th century. But in the Senate the great tradition still stands, yes, still stands strong, with a two-thirds majority still required to invoke cloture, as has been true from times immemorial, meaning 1917. Ooops, it’s 60 votes now. Well, the tradition still remains strong today, involving sometimes a single senator courageously standing before the entire body and speaking until he or she can no longer stand. And then perhaps another, moved by the power of the first speaker’s convictions, stands up to join the fray and continue the filibuster. Ooops, they don’t actually have to say or do anything anymore, just set a bunch of procedural matters in the way and then refuse to vote for cloture. (Take a look at C-Span at two in the morning and you will see that there is no actual, traditional filibustering going on that the Republicans are cruelly threatening to stop.)

    Yes, nonetheless, the sacred, inviolable Senate tradition of the filibuster is alive and well, and what is also alive and well is that a majority of the Senate can change that rule at any time, and has always had that right. Calling it a nuclear option and squealing about sacred traditions is the invariable response of a minority about to get its butt whipped. Boohoo.

    It’s so charming to see the American Left become so fond of tradition all of a sudden. We look forward to seeing them don their periwigs, wet the ends of their quill pens, and write their furious letters to the editors of the New York Times while Bush’s nominees are sworn into office.

  7. Ah, yes, the sacred, “centuries-old” filibuster rule that is still in force in both the House and Senate as in the first years of the Republic.

    The House? What?

    Ooops, the House hasn’t allowed filibusters since the early 19th century.

    Oh, it was a straw man.

    But in the Senate the great tradition still stands, yes, still stands strong, with a two-thirds majority still required to invoke cloture, as has been true from times immemorial, meaning 1917. Ooops, it’s 60 votes now.

    Wow, a change of seven votes. I have no idea what to say to that crushing argument against the filibuster.

    Well, the tradition still remains strong today, involving sometimes a single senator courageously standing before the entire body and speaking until he or she can no longer stand. And then perhaps another, moved by the power of the first speaker’s convictions, stands up to join the fray and continue the filibuster. Ooops, they don’t actually have to say or do anything anymore, just set a bunch of procedural matters in the way and then refuse to vote for cloture. (Take a look at C-Span at two in the morning and you will see that there is no actual, traditional filibustering going on that the Republicans are cruelly threatening to stop.)

    I don’t understand your point. What does this have to do with any of what I said? Do you have a problem with senators agreeing not to waste time on an inevitable filibuster? I think that the way filibuster threats are handled is rather rational. What exactly is your problem with it? And more importantly, how does it relate to the issue at hand?

    Yes, nonetheless, the sacred, inviolable Senate tradition of the filibuster is alive and well, and what is also alive and well is that a majority of the Senate can change that rule at any time, and has always had that right. Calling it a nuclear option and squealing about sacred traditions is the invariable response of a minority about to get its butt whipped. Boohoo.

    Funny, that’s not how the nuclear option works. A senate rule change requires 67 votes. If you don’t understand the underhanded process by which the GOP plans on enacting a rule change with a simple majority, then you’re arguing from ignorance.

    It’s so charming to see the American Left become so fond of tradition all of a sudden. We look forward to seeing them don their periwigs, wet the ends of their quill pens, and write their furious letters to the editors of the New York Times while Bush’s nominees are sworn into office.

    Since you failed to address any of the substance of my argument, I can only assume you know that you have no case. Try again?

  8. Also:

    Calling it a nuclear option […] is the invariable response of a minority about to get its butt whipped. Boohoo.

    Last time I checked, the Republicans invented the term “nuclear option”.

  9. Arguing from ignorance? Not at all. It’s all very clear in the National Review Online article the author referred to. It’s not an underhanded process, it’s as certainly within the rules of the Senate as the filibuster itself is. You lose, like your party.

  10. When did I say they were breaking the rules? You falsely equate underhandedness with violation of the rules.

  11. If they’re not breaking the rules, you can’t call what they’re doing underhanded any more than you can say filibustering is underhanded. It’s all just using the rules to one’s advantage. That’s politics.

  12. If they’re not breaking the rules, you can’t call what they’re doing underhanded any more than you can say filibustering is underhanded. It’s all just using the rules to one’s advantage. That’s politics.

    Gotcha. That means that what the Democrats are doing isn’t breaking the rules either. Otherwise, it would have been ruled “out of order” when the nominees actually were filibustered two years ago (let’s not forget that no one’s been filibustered yet). “Underhanded” depends on what side of the aisle you sit on. Perhaps using the filibuster on these judges is “underhanded,” but no more so than when Republicans allowed a SINGLE SENATOR to stall Clinton nominees in committee with “blue slips.” Procedurally valid, but arguably unethical and just as underhanded for denying those judges an up or down vote, to use your own terminology.

    Furthermore, your “boohoo Abe Fortas” comment doesn’t make any sense. It’s already been established that Justice Owens has taken hundreds of thousands of dollars from her former lawfirm for her campaigns while at the same time ruling in cases involving clients that firm represents. If what Fortas did was so egregious, then why the brouhaha over filibustering Owens?

    Try to at least keep your arguments consistent, even if they’re nonsensical.

  13. What Fortas did is far worse than what Owens is accused of. For Fortas to have been kept from becoming Chief Justice was an obvious necessity, as even his supporters realized when the truth came out. There is nothing remotely similar in Owens’s past–what she did is legal, whereas what Fortas did was criminal. You say what Owens did is egregious, and I say it’s routine. We’ll have to agree to disagree.

    “Gotcha. That means that what the Democrats are doing isn’t breaking the rules either.”

    You certainly didn’t hear me complain about the Democrats’ filibusters. That’s within the rules, and it’s fine with me if they want to do it. My point is that if something is within the rules, even if both sides at different times are stretching the rules beyond all recognition, it’s silly for either side to whine about it, as the Democrats are now doing.

    My arguments are consistent and perfectly sensible–I can’t help it if somebody is a hothead who doesn’t bother to read things they try to criticize.

  14. My point is that if something is within the rules, even if both sides at different times are stretching the rules beyond all recognition, it’s silly for either side to whine about it

    I disagree completely. In this world of ours, there are ethical things that are against the rules, and there are unethical things that follow the rules.

    Earlier, you said “If they’re not breaking the rules, you can’t call what they’re doing underhanded any more than you can say filibustering is underhanded.” Why can’t I?

    But that’s entirely besides the point. I pointed out the advantage of the filibuster — the value of forcing compromise when you have only a slim majority. I complained about the behavior of the GOP, which seems dissatisfied with not getting its way 100% of the time. You seemed rather uninterested in this argument, prefering instead to attack Abe Fortas, dispute arguments about the history of the procedure which I did not make, etc., all without addressing any of the substance of the issue.

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