Asymmetrical Information

I've heard of the proposal to knock down the number of votes needed to block a fillibuster by one until a simple majority is reached (thought it came from Lieberman). My feeling is that the fillibuster is just fine at 60 votes.

With regards to what should be done with the judicial nominee process, I think Bush should simply issue an edict: at the next recess, I'll nominate across the board unless you call a vote on these judges. And in stating that, Bush should openly acknowledge that he fully intends his successor to do likewise in the event that a Republican minority does the same thing down the road.

I can't,for the life of me, understand why Frist doesn't call the Dem's bluff and give them a real fillibuster instead of letting them get away with this symbolic thing. What's the down side? Let the country see the Senate business come to a standstill while the Dem's argue that highly qualified hispanic should be a federal judge because he won't answer questions that they won't ask him. Personally I always like a little gridlock. The fewer laws the get past the better.

Which is ultimately why the Republican lawsuit is such a dreadful idea. It's an attempt to do the same thing they're protesting in the Democrats: using the courts to end a political dispute. And this dispute isn't worth that kind of precedent. Besides, there's a strong possibility that if they hold off, the voters will resolve the dispute for them. And not to the liking of the Democrats.

Most judicial decisions, and certainly most con law cases, aim at settling a political dispute. That's their purpose.

The voters already have solved this one: by electing a Republican majority to the Senate and a Republican president. Jim Jeffords snatched this victory with his duplicitous defection in 2001 only to see it restored in 2002. But to require 60 votes--nine more than required by the Constitution--in order to let an elected president make judicial appointments takes away the people's vote.

I'm with Stan. I want the Republicans to force a good old-fashioned, 24 hour a day, cots on the Senate floor filibuster. It will be like the Superbowl for politics geeks.

Numbers on judicial nominees
With all the whining the Republics in Congress do over Jetboy's judicial nominees being blocked, you'd think that those obstructionist Democrats haven't let any nominees through. E. J. Dionne provides some handy totals in today's Post article:
The number of Bush circuit court nominees the Senate has confirmed: 22.
The number of Bush nominees confirmed to the district courts: 101.
The number of Bush judicial nominees currently being filibustered: 2.
The claim that Democrats are being obstructionist: priceless. And laughable.
And to point up the ridiculousness of the Republics' whining about the use of the filibuster, Dionne also gives comparable numbers during the Clinton years:
They had no qualms about using the filibuster to kill President Clinton's nomination of Henry Foster as surgeon general in 1995. Sam Brown, a leader of the movement against the Vietnam War, saw his ambassador-level nomination to head the American delegation to the Conference on Security and Cooperation in Europe blocked by a filibuster in 1994.
And filibusters aside, Republicans certainly didn't defer to all of Clinton's judicial nominations. Fifty-five Clinton judicial nominees never got a hearing and 10 more never got a vote in the Judiciary Committee.
And by the way, today is the second anniversary of Jetboy's nomination of Miguel Estrada. Here's to the mighty power of the filibuster!

well mike i'm sure you were upset when the republicans fillibustered those clinton nominations and you were probably upset when the democrats fillibustered civil rights legislation. i hated it when bork was borked.

notwithstanding that the constitution doesn't proscribe it, i have no problem with the 60 vote requirement. but let's make the dems explain their decision, so let's go to the mattresses.

"The voters already have solved this one: by electing a Republican majority to the Senate and a Republican president"

Need I remind you that Bush lost the popular vote? I don't want to get into a whole BvG thing here, but even if you think he legally had an electoral majority, that's a pretty tenuous mandate on which to base overturning major decisions such as Roe.

Besides, what's so hard about nominating judges who can get 60 votes? As Mike says, Bush has done it 101 times already. It shouldn't be that big a deal.

"Bush lost the popular vote"

What 'popular vote'? You mean the counting of the individual ballots that has absolutely no bearing on elections in America save as it pertains to the electoral college?

"I don't want to get into a whole BvG thing here, but even if you think he legally had an electoral majority, that's a pretty tenuous mandate on which to base overturning major decisions such as Roe."

An electoral majority is the only majority that counts in Presidential elections--and, despite anything said beyond it, Bush won all of the legitimate recounts. Which gave him an electoral majority...

Well, I would disagree about the recounts. But when determining who has a mandate for what, (not for determining the presidency), what counts is the will of the people, and that's more accurately expressed in the popular vote. Especially if you agree that Gore would have received the majority of Nader's support, and that many of the contested Florida Buchanan votes were cast in error. I'm not talking legalistically here, I'm talking about who more people wanted to be president, and that's Gore. Bush's mandate, if he has any mandate at all, is sufficiently small as to preclude any major changes to our system. As is the mandate of the 2002 midterms.

Mike - In trying to "put the lie" to Republican complaints, you left out some very important numbers:

Number of appellate court nominees currently being filibustered: 2

Number of appellate court nominees EVER filibustered before: 0

In the history of the Republic, never, before, has the minority party blocked an appellate court nominee in this manner. You might like the result (in this instance!), but it's hardly fair to suggest that Republican complaints are unfounded.

90210 - The complaint that Gore won the "popular vote" is a canard for the following reason. We don't know who would have one the popular vote had that been the point of the election. Bush and Gore both had a number of "safe" states where they did not see an reason to try and run up the vote totals to pad their victory margins. How many more votes could Bush have gotten in Texas had he used a massive get the vote out effort, for example? Both Bush and Gore could have gotten millions of additional votes from these safe states. For that matter, Bush could have gotten millions of additional votes from states he was sure to lose, like California and New York had he mounted a serious effort in those states.
Neither Bush nor Gore made the efforts they would have made had the point been to win the "popular vote" across the nation.

We cannot know what would have happened had they made such an effort. Debating what would have happened can be fun. (Though I'd think it would be more fun after several stiff drinks.) Trying to use the result of the popular vote to justify a position is just plain ridiculous, however.

Well, I disagree, but I'm not going to bother debating it because this is a righty board. But still. No popular vote, no mandate-- I would argue that absent maybe 55% of the popular vote, there's no mandate. Any way you slice it, the election was close enough that Bush can't claim a mandate for any of his propositions, including far-right judges, and thus James Joyner's initial proposition is false. That's all I'm trying to say.

90210, why 55%, why not 60%. it doesn't really matter let's see if Bush is willing to go to the bullypit and the Reps are ready to play hardball. my quess is that the Reps will wait until just before the election. in the interim the Dems wil support most but not all of Bush's nominee. should be an interesting hand of poker. just one more note, in the game of poker, Bush so far has cleaned the Dem's clock.

looks like a strong hand for the Reps.

on the Banks of the Housatonic.

and of course i meant the bully pulpit

90210,

I guess Clinton's 43% made him absolutely illegitimate as president.

hi all,
"If you're gettin ready to defend the filibuster to me, let me first ask you this: how do you feel about the Republicans imposing the same litmus tests in reverse? That is to say, no one may be approved if we find evidence that they are in favor of Roe, Bakke, and their judicial cousins. Still think it's fair?"

in the absence of a clear majority--fine. if you want to have an election in which the main issue is abortion and the fact that democrats favour it and the republicans don't and will repeal it--GO FOR IT! please, why do you think that the republicans downplay this issue in the general election?? because they know that if they come out strongly to kill roe v wade, they will get hammered. evidence to support claim: absence of any such strong sustained claim from the administration. i think that you assume that the populace believes that the republicans will turn it back. they don't. they tend to believe what politicians say and promise. bush never promised it; so they don't worry about it. naive i know, but it seems to be proven over and over again. americans tend to have faith in their politicians. fancy that.
to summarize: the reublicans have never campaigned in a sustained way to overturn the abortion right in an election setting. thus, they have no mandate to do it---except through the back door... (monet where my mouth is moment: if they campaign hard on that issue at all levels, and they win the majority election vote-electoral OR popular--then i submit to the will of the people).

hi twd,
"but let's make the dems explain their decision, so let's go to the mattresses. "

correct me if i am wrong, but the dems position is that they don't know enough about this guy and they want the admin to release his position papers on issues before the court so they can get a better look at him, and know what they are voting for. i do not find that unreasonable-(assuming we live in a democracy...)

> correct me if i am wrong, but the dems position is that they don't know enough about this guy and they want the admin to release his position papers on issues before the court so they can get a better look at him, and know what they are voting for.

That's what they say, but it isn't true.

They have access to folks who reviewed those papers (he worked for Dems).

Interestingly enough, this "look at the ASSIGNED work product" question has never been used as a disqualifier. Dems who have served in the Justice department and who are interested in its proper function have been protesting the request.

The request is a clever version of "we won't allow a vote unless he can do a 15 foot standing high jump".

90210: I think it's pretty clear that Bush had a mandate when voters upped the Senate. And if you use this argument, you'd better be prepared to sign off on anything Bush does if he clears 50% in the next election.

Cas: The Democrats couldn't win on their Roe position either -- abortion outside of rape, incest, and life of the mother doesn't poll so hot. Abortion outside of the first trimester loses by something over 2/3, or is it 3/4? Both parties are in tacit collusion not to mention it, which is why they campaign at NARAL early and then tell their reps to pipe down. Notice that the Democrats are not saying "We won't approve these guys because of abortion". The Republicans would presumably do the same thing: "We just have questions about his performance." It's only that the ultimate effect would be to prevent any pro-choice, pro-affirmative action judges from making it to the higher benches. Still fine with it?

And what the hell does "clear majority? mean? These guys would pass by something like 55, 56 votes. That seems pretty clear to me. How does it suddenly miraculously clarify when it clears the number 60?

hi jane,
i think you raise a good point re party collusion and the general disquiet about third trimester abortion. in australia, abortion is a conscience vote in parliament, and it always comes out pro-abortion. the reason is that its a cross party issue in australia. in any case, i am still willing to put my money where my mouth is. tactically, bush should campaign (according to the logic you gave above on third trimester abortion as his way in) and take the heat. he wins, the folks have spoken...

What do second and third trimester abortions have to do with Roe?

Bush did get fewer than 50% o the votes in the last election. Despite that lack of a majority, he has no problem in nominating judges in an effort to have judically imposed solutions to political problems. Could it ever be otherwise once the founders delegated the selection of judges to the political branches of government?

The Democrats have allowed a number of anti-Roe Judges to be confirmed. As Dionne points out, 123 Bush nominees to the federal bench have been confirmed. How can that be if "the Democrats are effectively saying that no matter who has the majority, no one may nominate judges that are not pro-choice?"

Has Bush nominated 123 pro-choice judges? Either Bush has been nominating a lot of pro-choice judges or Jane is wrong about what the Democrats are "effectively saying."

It is possible for Bush to locate 123 Judges who are acceptable to 60 Senators. Why is it not possible for him to locate 2 more?

I'm not saying anyone without 55% (or 60%) of the popular vote is illegitimate, I'm saying he doesn't have a mandate. Same goes for Clinton. A presidency is won with the majority of electoral votes; a mandate is won with a significant majority of popular votes. Such a president gets to do whatever he can manage to accomplish, but doesn't get to claim that he's carrying out the will of the people.

There's no real reason to pick any particular number, but we could let the Senate filibuster rule be our guide and go with 60%, if you want.

And no, the 2002 midterms were so close that I don't think that's a mandate either. A mandate is a significant majority, and those races were, in the aggregate, way too close.

cas - Why should Bush campaign on the issue of abortion? He cannot do anything about it. No President can. The Supreme Court has ruled that the right to an abortion is somehow contained in our Constitution. The ONLY way Bush could change things would be to appoint enough Supreme Court Justices to the court who not only think Roe was wrongly decided but are also willing to overturn it. Many conservatives have problems with Roe and yet are unwilling to overturn it -- such is a conservative's respect for precedent.

Even if Bush could find enough potential candidates, he needs openings on the Court. So far, it doesn't look like he'll get a chance to replace many of the 5 Justices who solidly support Roe.

That doesn't mean abortion is not a big issue in the US. It just means there is little a President can do about it and therefore little reason to campaign on the issue. Had our Court allowed this to remain in the political realm, we would have resolved the issue a long time ago -- just like they've done in Australia.

"The Democrats couldn't win on their Roe position either -- abortion outside of rape, incest, and life of the mother doesn't poll so hot."

The Democrats aren't looking to change the status quo, so that doesn't really matter. If you put up "let states ban abortion" vs. "keep abortion as is" the GOP isn't going to win.

I'm not particularly sure what's so bad about all this political fighting about nominations. Do people have an incredible fetish for process? If it gets to be too bad, the parties will come to a deal; currently, no one's judged that it's worth it. And as Dionne pointed out, it's still a sideshow.

Here is a bunch of relevant polls, by the way.

The problem isn't in the lower courts. The problem is in the higher ranks of the judiciary, where the Democrats are trying to block nominees who could be considered for the Supreme Court on the grounds that they are not pro-choice. It's irrelevent how many lower court judges have or have not been nominated; the reason the Democrats are doing this is to try to maintain a very tenuous status quo.

And if y'all think it's such a hot issue for Dems, how come no one in your party has the balls to come out and say that that's what they're doing? They know what's up, even if you don't.

Chuck Schumer has come out and said that political positions are an appropriate basis to oppose a nomination. I think that is right as the fact that the founders placed judicial selection in the hands of the poltical braches suggests that they understood that politics would play a role in the process.

Sure Dems oppose Bush's nominees because those nominees will push the law in a direction that the Dems do not want to see. So what? Bush has nominated those very same two judges because he expects they will push the law in a direction he likes. Why doen't Bush have the balls to run for reelection on the platform of outlawing abortion?

I,for one, would admire his courage. I would even chip in for Karl Rove's funeral after his heart attack.

The suggestion that the District Court and Circuit Court nominations do not matter is just plain silly. You link to a post that links to a post that suggests that both sides may go "nuclear" and basiclly blow up the Senate as we know it over 2 Circuit Court nominees. If Circuit Court nominees are irrelevant, why all the fuss?

In addition, to those of us that practice in the Federal Courts, the make up of the bench is of prime importance. At that level, people like me want judges that practice judical restraint instead of just talking about it.

The activism in the Federal Judiciary is all on the right. No sign of liberal judical activism has been sighted in about 25 years. Cerainly not in the 18 years I have worked in the Federal Courts.

The cases that conservatives always complain about are Bakke, Roe and Miranda. When were those cases decided? What is the latest example of liberal judical activism coming out of the Supreme Court (other than arguably Bush v. Gore)?

The lower Federal Courts also affect Supreme Court jurisprudence by shaping the issues on which cert is sought, creating the factual context in which Supreme Court decisions are made, shaping the legal context in which Supreme Court decisions are made and applying the rulings of the Supreme Court to different fact patterns.

The lower Federal Court nominees are irrelevant to you because you are only interested in exactly what you accuse the Democrats of doing, using the courts and the nomination process to promote a political agenda. Nothing wrong with that, in my view, but is would be better to simply admit it.

hi jane,
why make the assumption that those of us that don't agree with you are democratic party afficiandos? i am not by the way, though i may have some sympathy for some of their positions (and sympathy for some republican/libertarian positions...

Jane,

Are you contending that Bush doesn't have litmus tests for his nominees?

If Bush does, then why can't the Senate Democrats have them too?

Are you contending that it is wrong to allow the Democrats to use procedural obstacles to block nominees, but it was OK for the Republicans to do so?

Are you contending that when the Republicans blocked Clinton nominees it had nothing to do with ideology?

Do you really think that only liberal judges make "controversial" rulings?

The Republicans didn't forbid Clinton to make pro-choice nominations, which is essentially what the Democrats are trying to do in reverse. That's what I mean by "litmus test".

"The Republicans didn't forbid Clinton to make pro-choice nominations, which is essentially what the Democrats are trying to do in reverse."

The Democrats aren't forbidding Bush to make anti-abortion nominations. The vast majority of his nominations have been confirmed, and I doubt there have been many pro-choicers in the group.

What the Democrats are doing is setting up procedural roadblocks to the confirmation of only two nominees, just as Republicans used procedural roadblocks to stop the confirmation of Clinton nominees they particularly disliked.

Bernard - Two problems with your arguments: First, Bush, his administration, and the nominees have all said the nominees were NEVER asked any questions about specfic cases, including Roe v. Wade. By all reports, Bush has looked at judicial temperment, not political idealogy, in choosing nominees. By contrast, for the FIRST time, Democrats have said they will make political idealogy of a nominaee a primary consideration. This is a significant departure from the way things have been done in the past. That is, the Democrats have made explicit that they have a litums test. The Republicans, if they have a litmus test (and I don't believe they do) have at least had the courtesy to keep silent about it.

Second, the Democrats are using proceedural roadblocks that have NEVER been used under these circumstances before. A fillibuster cannot be overcome as easily as the roadblocks that had been used in the past by both parties. In the past, combatants limitted themselves to swords and pistols. The Democrats have introduced tanks into the picture. By any reasonable point of view, the Democrats have dramatically escalated the conflict by introducing new and much more powerful weapons.

David,

You write,

"The Republicans, if they have a litmus test (and I don't believe they do) have at least had the courtesy to keep silent about it."

Isn't having the "courtesy to keep quiet about it" otherwise known as lying about it?

I simply don't believe that Bush hasn't considered political ideology. The "all reports" you refer to come entirely from pro-administration sources. I don't think they deserve much credence, especially when you consider the conservative views of his nominees, and his statements that he regards Scalia as a model.

Anyway, the notion that what Bush thinks of as a desirable "judicial temperament" can be divorced from ideology is fallacious. There is judicial activism on the right (Owen was famously criticized for it by Alberto Gonzales) too.

Are the Democrats escalating to tanks from swords and pistols? I don't think so. The power of a weapon is how much damage it can do. When Hatch denied Clinton nominees hearings or committee votes he prevented them from getting floor votes. The Democratic filibusters are having the same effect on Owen and Estrada. Yes, it's a different weapon, but it's the one they've got, and the effect is no different.

And let's take another look at the "no precedent" argument. Isn't it possible that there is no precedent because never before has a president tried so explicitly to fill the judiciary with ideologues?

Bernard - The value of not being explicit is that it allows the process to move forward without a demand for a response on the other side. Part of the art of politics used to be making it perfectly clear what you thought of your opponent without resorting to "fighting words". By being explicit in their demands that political ideology be taken into account, the Democrats are waving a red flag -- to the cheers of their supporters and the jeers of Republicans. The Republican senators cannot back down without looking bad to their supporters. The Democrats have left them no room to manouver.

As for Hatch blocking Clinton nominees serving as an excuse for the filibuster of nominees, the charge is false. Did Hatch block nominees? Yes, but he did so ONLY when Clinton had failed to consult with the senators from the nominee's home state. From the early days of our Union, Presidents have consulted with the senators from a prospective nominee's state. When the President fails to do this, the Judicial Committee Chair from both parties has refused to call a hearing for the nominee. What Hatch did was within the norms for the senate. What the Democrats are doing is well outside the established norms. They are killing the courtesy that is required for the process to move forward.

Something over half of the Clinton nominees that the Republicans blocked were "blue slips" -- nominees that didn't get a thumbs up from the Senator from their home state. That's just Senate SOP.

Bernard, let me rephrase: the Republicans have not refused to accept anyone becaues they were ardently pro-choice. The Democrats are refusing to accept people because they are ardently pro-life. In other words, a litmus test. Why are you arguing this? Senator Schumer has pretty much said that anyone who disagrees with Roe ain't getting by him to a prominent court seat. The Republicans never said anything close to the reverse.

"The Democrats are refusing to accept people because they are ardently pro-life. In other words, a litmus test. Why are you arguing this? "

Bush has had 124 nominees confirmed. Doesn't sound like blanket refusal to me. How many do you think are "ardently pro-choice?" The Republicans are refusing to appoint people who are NOT anti-abortion. In other words, a litmus test. Why are YOU arguing this?

Read the platform:

" we endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.  Our purpose is to have legislative and judicial protection of that right against those who perform abortions. "

As far as the blue slip business goes, this was turned into a rigid rule by Hatch in the mid-90's, and then used to block some nominees. This was not a long-standing norm. Of course, now with a Republican president Hatch is trying to change the policy. So much for your norms. So the "Senate SOP" argument is not really accurate. In fact the whole blue slip business is just another type of procedural gamesmanship.

Again, one thing remains clear. You approve of Republican use of procedure to block Clinton nominees, but disapprove of Democratic use of procedure to block Bush appointees.

I don't particularly disapprove of Democratic filibusters: I disapprove of this filibuster, for the reasons I've stated.

Bernard - You are just plain wrong on the facts. Using blue slips to block a nominee was common practice before Hatch was even elected to the Senate. What the Republicans did to Clinton's nominees was not without precedent. What the Democrats are doing to Bush's nominees has never been done before.

Follow Jane's link to Lawrence Solum's discussion of the history of these fights for a good summary of the facts. Only the most partisan observers claim that what the Democrats are doing is NOT a significant departure from Senate norms. You might like the result, but quit trying to argue that what is being done is nothing new. The Democrats are playing with fire and risk burning down the Senate's traditions of courtesy that make it possible for the Senate to work.

Is this fight worth destroying the Senate? I don't think so, but since the Republicans cannot let the Democrats win (because their supporters will not let them), the fight is likely to involve tactics that will eliminate the ability to filibuster a judicial nominee. Can the Republicans pull this off without damaging the Senate? I doubt it. If they go this route, it will be because the Democrats forced their hand by filibustering a judicial nominee. (For the record, if the Republicans were filibustering a judicial nominee, they too would be forcing the Democrat's hand.)

The Democrats are relying on the Republicans' respect for Senate traditions to win this battle. They have gone to the well too often for that to work this time.

I agree that the Republicans shouldn't involve the Court in the question of the whether the filibuster is unconstitututional. If they had any guts, they would just amend the rules by a majority vote, in the manner suggested by Frist.

Some may argue that a Senate majority may not simply change the rules, because a rule change reuqires 67 votes. However, the 67 vote requirement is neither a consitututional provision--which cannot be changed absent the amendment process, nor is it a law of the United States--which would require the enactement of a new law, passed by majority vote of both houses and signing by the President. It is only a Senate rule of procedure, and the Constitution provides that the Senate may proscribe its own rules. The filibuster rule exists solely at the sufferance of the majority.

The Courts would have no say over whether a Rule change to end filibusters of nominees, approved by a majority of the Senators, is valid or invalid. It is simply beyond the power of the Court to interfere with Senate procedural rules that have been approved by a majority of the Senators.

David,

The blue slip business is more complicated than you say. Try

http://www.dailykos.com/archives/001220.html

for more information.

You could also read this:

http://washingtontimes.com/national/20030402-611766.htm

The article discusses Hatch's refusal to honor the blue slip rule in the case of Carolyn Kuhl, a nominee from California. It quotes Hatch as saying,

 "I'll give great weight to negative blue slips, but you can't have one senator holding up appellate court nominees," Mr. Hatch said in January.

This was not Hatch's position during the Clinton Administration.

You argue, previously, that lying about litmus tests is OK because it "allows the process to go forward." But the process of putting right wing extremists onthe federal bench is not one that should go forward.

Finally, I don't understand your point that unless the Democrats stop filibustering nominees there will have to be a rule against filibustering nominees. You seem to be saying that they shouldn't filibuster because if they do they won't be allowed to filibuster.

So the blue-slip procedure is a fine and dandy method to hold up nominees, but filibusters (or threats thereof) aren't? What possible difference is there?

Jesse Helms routinely blocked Clinton nominees from North Carolina via blue slip. So Hatch was willing to have a minority of one block several nominations, but is outraged that a minority of 49 is blocking two.

It's not 49, Bernard -- I believe it's 43, but I could be misinformed. But it's considerably less than 49. Moderate Dems are scared witless that 2004 will turn over enough seats to break a filibuster, and then they'll be really screwed; they're not on board with the filibuster.

So Jesse Helms did. But so did Democratic senators; Leahy blue-slipped several, I believe. The difference is, it's bipartisan

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