Asymmetrical Information

The left tolerates minorities only as long as they help the left to achieve and maintain power.

Once they perceive a minority as a threat to their power their true racism shines through. Then the traitorous minority is viciously attacked as only a racist can.

for more evidence, look at how universities treat asians and indians (or east and south asians, if you prefer)

it's almost as hard to get into school if you're asian as it was in the 30s if you were a jew... they're "over represented"

were asians treated badly in the recent past? absolutely. have they been massively discriminated against and had all of their rights violated? absolutely. popculture slurs against them? absolutely. visibly not white? absolutely.

do they need help in getting their shizzit together? HELL FREAKING NO

so instead of the support of leftists everywhere, they get burned out of their neighbourhoods and their businesses attacked because they're willing to work in underserved communities

the worst racism in this country is that of the left (especially the black left) against asians and jews

it would be interesting to launch personal suits against senate dems (as they are employers and form a hiring committee) maybe we could try to get the Federalist Society to do it?

So is the Bush administration so noble that they wouldn't show a bias *towards* conservative minorities in order to groom a Supreme Court nominee that would make the administration more appealing to minority voters?

Do White Male Conservatives have a cause of action against both Bush administrations? More than a few people noted that Clarence Thomas wasn't the best conservative judicial mind, but he was one of the best black conservative judicial minds & Bush I wanted to replace Marshal with a black. Why is this not discrimination against white conservatives like Bork?

Is this post meant to be read as tongue-in-cheek?

Are you really comparing the political decisions of Senators with hiring practices of the private sector?

George Bush will nominate conservatives and democrats will block him if they can. Just like republicans blocked Clinton when they could. When the GOP changed the rules of Senate approval (see Calpundit's excellent summary) they did so becasue they had the power and the desire to block Clinton's nominees.

Anti discrimination law played no role then and neither does it now, either legally or practically.

Are the Democrats effectively discriminating against minorities?

Based on the evidence, not very effectively at all:

Confirmed, Hispanic: Christina Armijo (NM), Phillip Martinez (TX), Randy Crane (TX), Jose Martinez (FL), Alia Ludlum (TX), Jose Linares (NJ), Edward Prado (5th Circuit), Consuelo Callahan (9th Circuit), S. James Otero (CA), Cecilia Altonaga (FL), Xavier Rodriguez (TX), Frank Rodriguez Montalvo (TX)

Not confirmed, Hispanic: Miguel Estrada (DC Circuit)

Confirmed, African-American(*): Beggie B. Walton (DC), Julie A. Robinson (KS), Legrome D. Davis Pennsylvania (PA), Percy Anderson (CA), Lavenski R. Smith (8th Circuit), Henry Edward Autry (MO), Morrison C. England, Jr. (CA)

Not confirmed, African-American: Janice Rogers Brown (DC Circuit) (at least not yet)

(*) Does not include two nominees which were originally nominated by Pres. Clinton. Also omitted are two African-American nominees who are expected to be confirmed shortly.

Erratum: strike the word "Pennsylvania" from the list of confirmed African-American nominees; obviously, that judge's last name is Davis.

The Democrats have ethnic quotas for their presidential conventions, but because they base the quotas on the whole population (not just Democrats) the delegate selection is biased against African Americans. Republicans, on the other hand, disproportionately favor African Americans, relative to the number they have to choose from.

Alkali,

Thanks for injecting some actual data into this discussion.

Perhaps Jane will have the good sense to simply withdraw her post.

"Just like republicans blocked Clinton when they could."

Well, they should have blocked Ruth Statist Ginsburg.

linsee writes:

The Democrats have ethnic quotas for their presidential conventions, but because they base the quotas on the whole population (not just Democrats) the delegate selection is biased against African Americans.

Actually, the bylaws of the Democratic party suggest "representation as nearly as practicable of minority groups . . . as indicated by their presence in the Democratic electorate," not the general population. About 20% of delegates at the last convention were African-American; I think the actual proportion of African-Americans in the American population is something like 12-14%.

I frankly have no idea what the specifics on the GOP side are, although I'm pretty certain the GOP does seek out members of minority groups interested in serving as convention delegates.

A good conservative/libertarian answer would be yes, the Senate may discriminate against minorities, not only in judicial nominations but in other areas as well, since a good conservative/libertarian answer would deny both the incorporation doctrine and the reverse incorporation doctrine.

That aside, alkali sheds some good light on the subject, and I understand their are particular problems with the brand of conservatism espoused by the troubled nominees. No one expects Bush to nominate liberals to the bench, but he's nominated some conservatives and some true extremist right-wingers. In addition to the fact that he lost the popular vote, GWB also ran on a deceptively moderate platform. He had no mandate to enact the Christian Coalition agenda, through judicial appointments or otherwise.

Perhaps Jane will have the good sense to simply withdraw her post.

Is there something in the water? Has anyone noticed that blog comments on all blogs are getting more shrill, rude, and moronic?

I remember when someone using their real name on comments loosely correlated to a somewhat higher level of decorum, but Bernard is putting the lie to that notion.

As for the substance, akali's data was interesting, but proves nothing. First of all, I believe "Jane Galt" used "effectively" to mean "in effect" as opposed to "succesfully" so how successful the efforts at discrimination have been is not germane. After all, there is a limitation to how effective they can be as the minority party. And, I think we all understand that what we're really talking about here is nominations to circuits that are considred to be a stepping stone to the Supreme Court, and of minority Justices that are seen as potential Supreme Court Justices. These are the nominations that the Democrats are fighting. Also, all you're showing is that some Hispanic and African-American justices have been confirmed and others haven't. Again, as the minority party the Democrats can't possibly be 100% successful in an attempt to block every nomination. What we're the votes, might be a a relevant piece of information.

Anyway, whether or not you think she is completely full of it to ask the blogger to "withdraw the post" is a conceited and rude suggestion. It's an opinion/analysis post and contains no factual error. If you disagree, explain why, or get your own blog. What can it possibly add to the discussion to leave a comment like that?

While Alkali's post pretty clearly disposes of Jane's argument, I'd like to point out that even if Brown and Estrada were Bush's only African-American and Hispanic nominees, respectively, the blocking of their appointments would hardly constitute evidence of discrimination on the Democrats' part. The reason is that neither Brown nor Estrada is even minimally qualified to serve on the Federal Appellate bench. Brown is well known, at least in California (where I lived until about 2 years ago), as the dimmest bulb on the CA Supreme Court. She would be in over her head, in a very Clarence Thomas like way, on the DC Circuit. Estrada may well be a bright young lawyer, and might be a good candidate for a Federal District judgeship, but he has absolutely no judicial experience, nor does he have any record as a legal scholar. Qualified Appellate Court nominees should be either experienced judges or scholars of some distinction.

It amazes me that we've arrived at the point were advocating
the values articulated in the constitution and its amendments
is described as right-wing "extremism."

On the same score, since upholding the constitution is the
main job of the supreme court, is Ruth Ginsberg a legitimate
supreme court justice?

Most of the arguments I would have made against Jane have already been issued here, so I won't bother. But I would like to make an addendum to "Jane's Law" which should prevent Jane from making ignorant (and I feel inflamatory) posts like the one we are responding too. It is: "The Party In Power will always accuse the Party Out Of Power of doing the exact thing The Party In Power did when it was the Part Out Of Power. If the Party In Power did not do the thing that it is accusing The Party Out of Power of doing, it is only because they never thought of it, or it wasn't legal at the time."

Eric Deamer writes:

And, I think we all understand that what we're really talking about here is nominations to circuits that are considred to be a stepping stone to the Supreme Court, and of minority Justices that are seen as potential Supreme Court Justices. These are the nominations that the Democrats are fighting.

That's true, but cuts both ways: it's not as if the administration chooses at random which nominees it's going to name to the DC Circuit. Accordingly, if the Dems claim that the nominees that Bush is readying for a SCt nod are among the most conservative of the Bush nominees, they might well be correct.

Also, all you're showing is that some Hispanic and African-American justices have been confirmed and others haven't. Again, as the minority party the Democrats can't possibly be 100% successful in an attempt to block every nomination. What we're the votes, might be a a relevant piece of information.

The votes on the other judges were pretty lopsided in favor of confirmation, though it is probably true that for political reasons, members of the minority party tend to vote to confirm in cases where there is no serious effort being made to block the nomination. So the votes won't tell you much.

"Is there something in the water? Has anyone noticed that blog comments on all blogs are getting more shrill, rude, and moronic?"

Jane advanced a hypothesis. Alkali provided data that clearly refuted it. I don't think it's rude or moronoc to suggest that the hypothesis be withdrawn. In fact, I would expect someone advancing an idea to admit they were wrong when the facts show that the the case.

"As for the substance, akali's data was interesting, but proves nothing. "

It disproves the notion that Democrats are discriminating against minority appointees.

"First of all, I believe "Jane Galt" used "effectively" to mean "in effect" as opposed to "succesfully" so how successful the efforts at discrimination have been is not germane. After all, there is a limitation to how effective they can be as the minority party. And, I think we all understand that what we're really talking about here is nominations to circuits that are considred to be a stepping stone to the Supreme Court, and of minority Justices that are seen as potential Supreme Court Justices. These are the nominations that the Democrats are fighting. "

Read this paragraph. No data. Nothing. Just a repeat of the claim.

"Also, all you're showing is that some Hispanic and African-American justices have been confirmed and others haven't. Again, as the minority party the Democrats can't possibly be 100% successful in an attempt to block every nomination. What we're the votes, might be a a relevant piece of information."

Twelve out of thirteen Hispanics have been confirmed, per Alkali. Seven out of seven African-Americans (pre-Brown) have been confirmed. That's not "some have been and some haven't."

"Anyway, whether or not you think she is completely full of it to ask the blogger to "withdraw the post" is a conceited and rude suggestion. It's an opinion/analysis post and contains no factual error. If you disagree, explain why, or get your own blog. What can it possibly add to the discussion to leave a comment like that?"

My reason for disagreeing was clear in my post, but to be polite I'll spell it out: Alkali's data refutes Jane's opinion. What the comment adds to the discussion is the notion that looking at the data is a good way to evaluate an argument.

Jane can speak for herself, but I understand her point as that likely Supreme Court nominees are being stopped, not all nominees. The data for lower profile nominees is not necessarily the same group. It is not clear that Jane has been refuted.

As far as Janice Brown being "dim," I lack, well, data; since many on the left feel that only dumb folks disagree with them, I don't think that has been established.

As far as Estrada lacking credentials, Mark is imposing a resume' test that has not been required. John Marshall (and Thurgood Marshall, for that matter) wouldn't have passed Mark's test.

Bernard Yomtov:

The data is certainly germane but does not contain a lot of other information that could be helpful. It certainly is not enough, in and of itself, to disprove the claim.

The first sentence of the post beings like this "With Miguel Estrada, and now Janice Brown, the Democrats are pretty clearly trying to keep conservative minorities off the appellate bench"

The key word here is "trying". Again, the Democrats do not have a majority in either house of congress, so there is a limitation to how successful they can be in attempting legislatively to block minority conservative judges from the appelate bench. This is why they've had to resort to an unprecented filibuster in the vote for a federal appeals court nominee. This is evidence, at least, that they have taken extraordinary measure to try to block one conservative minority nominee. To prove or disprove "Jane Galt"'s hypothesis that they are "trying" to block conservative minority judges one need only show that Democrats are consistently voting against them. alkali has presented no data regarding that.

Ok, then, Eric: provide evidence that the Democrats tried to block the other nominees.

Eric Deamer writes:

To prove or disprove "Jane Galt"'s hypothesis that they are "trying" to block conservative minority judges one need only show that Democrats are consistently voting against them. alkali has presented no data regarding that.

If by "conservative minority judges" you mean all Bush minority nominees, I think the data are clear that the Democrats are not consistently voting against all Bush minority nominees. (If you believe that, notwithstanding their votes to confirm, the Dems secretly in their hearts oppose all Bush minority nominees, I'll let you in on a secret: we oppose all Bush nominees, minority or no. We actually wish Al Gore were president. In fact, many of us even voted that way.)

If by "conservative minority judges" you mean the most conservative subset of Bush minority nominees, I think the data are pretty clear that the Democrats are pretty consistently opposing all of the most conservative Bush nominees, minority or no. (Priscilla Owen and Charles Pickering are other examples.)

Eric Deamer writes:

To prove or disprove "Jane Galt"'s hypothesis that they are "trying" to block conservative minority judges one need only show that Democrats are consistently voting against them. alkali has presented no data regarding that.

If by "conservative minority judges" you mean all Bush minority nominees, I think the data are clear that the Democrats are not consistently voting against all Bush minority nominees. (If you believe that, notwithstanding their votes to confirm, the Dems secretly in their hearts oppose all Bush minority nominees, I'll let you in on a secret: we oppose all Bush nominees, minority or no. We actually wish Al Gore were president. In fact, many of us even voted that way.)

If by "conservative minority judges" you mean the most conservative subset of Bush minority nominees, I think the data are pretty clear that the Democrats are pretty consistently opposing all of the most conservative Bush nominees, minority or no. (Priscilla Owen and Charles Pickering are other examples.)

The idea that some Democrats have that George Bush should, because he narrowly lost the popular vote, nominate the judges Al Gore would have picked is quaintly cute ...

What's "quaintly cute" is that Jane has a reputation of intellectual honesty despite such throughly dishonest statements like this.

What's dishonest about that statement, Amitava?

Do some (as Jane explicitly qualified) Democrats not espouse essentially that view? That Bush, because he "lacks a mandate", say, should "moderate" his nominations (ie, choose people the Democrats like)?

I seem to recall hearing some Democrats argue along those lines.

What's dishonest is that no Democrat is demanding that Bush nominate Democrats. They are insisting that he nominate center-right candidates the way Clinton appointed center-left ones.

We forget that although Breyer and Ginsburg had near unanimous support, they were compromise candidates. Neither were even in the top 100 choice of most liberals. Both can best be described as corporate liberals and represent, in most liberals' view, Clinton's wimpish approach to the federal judiciary. Republicans made absolutely clear that potential candidates like Mario Cuomo and Lawrence Tribe (just a couple of names I recall from that time) would have NO chance because they were liberals.

(Indeed, if anyone has forced a President to nominate someone of the opposite party (and, more significantly, ideology) it was Orin Hatch who forced Clinton to appoint one of Hatch's buddies to the 10th Cir. in exchange for expediting the hearing process.)

That this was Jane's central argument makes the her whole point pretty pointless.

So to review:

1. There is no pattern of discrimination against minority Bush appointees that can be detected from the data.

2. There are non-minority appointees that have been opposed by the Democrats.

What we are left with is basically affirmative action for conservatives. If you listen to the rhetoric, you are baically hearing that the Democrats should give Bush's minority appointees a pass because they are minorities.

"Extreme right-wingers"??!!!

Democrats appear on stage with the Stalinists of ANSWER, support ANSWER's rallies, and chant their revolutionary slogans. And they expect us to believe that Bush and Ashcroft are "extremists."

Democrats believe that anyone who loves God, is proud of America, goes to church every week, supports the US military, and wears an American flag pin is extreme. As Zell Miller has said, the Democrats have told the Southern third of the US to go to hell. They are trying extremely hard to alienate large majorities in the rest of the US, too.

Reality check -- substantially more people agree with Newt Gingrich's political positions than Ted Kennedy's.

so are the leftists heer insane cause their potential nominees suck, because they're going to get crushed in 04, or just the normal maoist brain rot? discuss...

Stan,

Take your medicine.

It seems to me that if Gore had won (the electoral college, not just the popular vote) he'd be nominating liberals. And the Republicans in the Senate would be turning them down, including liberal minorities.

So as long as the opposition party has 40 or more votes in the senate, minorities of either political slant will not be federal judges, no matter who's in the white house or who holds the senate majority.

Funny, I could swear that I read a different post than most of the commenters. Jane stated that the Dems were trying to block the appoitnment of minorities to specific appellate courts, not to any federal bench, but to specific ones. That appointments to lesser courts have been voted on doesn't matter to the arguement. Jane is not suggesting that using race as a criteria is good or bad, she does not suggest it was not a factor in the decision to nominate them. She is argueing that the Senate Dems are refusing to allow a vote on the nominees and their primary criteria is race. They throw out other justifications, which, while they may in fact be valid objections, have no precedent. To suggest that a justice on California's supreme court is not qualified is laughable, that she may be objectionable otherwise is possible, but can we have some objectivity here please?

I suppose that you folks may be trying to change the arguement for lack of a rebuttal, how special.

"She is argueing that the Senate Dems are refusing to allow a vote on the nominees and their primary criteria is race. "

It would seem that the primary criteria are:

1. Are they very conservative.
2. Are they potentially being groomed for a Supreme Court position.

If the primary criteria is race how do you explain the whites who have been opposed by the Democrats?

I can't read this sentence:
"Anti-discrimination suits supported by those same Democrats have made it difficult for companies even facially neutral employment tests that have disparate impact on minorities."
Is there a word missing? Is this in code? Please explain.

I can't read this sentence:
"Anti-discrimination suits supported by those same Democrats have made it difficult for companies even facially neutral employment tests that have disparate impact on minorities."
Is there a word missing? Is this in code? Please explain.

Bernard Yomtov: Perhaps Jane will have the good sense to simply withdraw her post.

Eric Deamer: Is there something in the water? Has anyone noticed that blog comments on all blogs are getting more shrill, rude, and moronic?

I didn't notice any of "shrill, rude, and moronic"; I was utterly stuck on the split infinitive.

John writes:

Jane stated that the Dems were trying to block the appoitnment of minorities to specific appellate courts, not to any federal bench, but to specific ones.

Jane wrote:

If you [i.e., the Democrats] have said that no conservative minorities (or fewer conservative minorities) will be allowed on the courts ...

John wrote:

I suppose that you folks may be trying to change the arguement for lack of a rebuttal ...

I don't think I'm the one trying to "change the argument for lack of a rebuttal" here.

To be frank, I'd really like to know what the argument is -- assuming it isn't "Democrats won't confirm any of Bush's minority nominees," which can't be correct for reasons stated above.

If the argument is that "Democrats won't approve any of Bush's minority nominees to the DC Circuit," it is correct that the Democrats refused to confirm Estrada and are showing reluctance to confirm Brown. However, the Democrats' claim that they are doing so because Estrada and Brown are very conservative nominees is hardly incredible: Estrada and Brown are (or, in the case of Estrada, were) very conservative nominees, and the Democrats have likewise refused to confirm very conservative white nominees to appeals courts (Pickering, Owen).

The suggestion that the Democrats are opposing these nominees because they want to eliminate all possible Bush minority nominees to the SCt is not credible. Of the current SCt, only 3 justices came from the DC Circuit (Scalia, Thomas, Ginsburg). Four came from other federal courts of appeal (Stevens, Souter, Breyer, Kennedy), one came from DOJ (Rehnquist), and one came from a state appellate court (O'Connor, although Souter spent only a few months on the federal bench after leaving the NH state supreme court). The Democrats have confirmed 2 Hispanic appeals court nominees and 1 black appeals court nominee, and will almost certainly confirm more. Any of those nominees -- in addition to the Reagan and Bush 41 nominees already on the federal appeals courts -- could be named to the Supreme Court and no one would argue that the nominee lacked the credentials for the appointment. Indeed, if Bush named Brown as a Supreme Court pick today, it is highly unlikely that she would face any serious opposition on the ground that she hasn't been on a federal court. Accordingly, there are lots of potential Bush minority nominees to the SCt, regardless of what happens to Estrada or Brown.

The reason Estrada didn't get confirmed is (a) he's very conservative, (b) he's got a background as a GOP hatchetman (and I'm not saying the Dems don't have them), and (c) he's very young. Political payback, mostly.

The reason Brown is running into trouble is that any Bush nominee who says something incredibly inflammatory is going to get into trouble. In Brown's case, she publicly called into question the incorporation doctrine, i.e., the doctrine that the Fourteenth Amendment means that most of the Bill of Rights applies to the states. That's pretty inflammatory -- it suggests that California could amend its constitution to make Southern Baptist or Wicca the state religion, for example. Open your mouth, try not to insert foot.

"Just like republicans blocked Clinton when they could."

Please list for me the nominees for a judgeship on a Circuit Court that Republicans fillibustered, ever.

"The reason is that neither Brown nor Estrada is even minimally qualified to serve on the Federal Appellate bench."

Interesting opinion, really, but the ABA, no friend of conservatives, found Estrada to be well-qualified.

alkali:

In Brown's case, she publicly called into question the incorporation doctrine, i.e., the doctrine that the Fourteenth Amendment means that most of the Bill of Rights applies to the states. That's pretty inflammatory -- it suggests that California could amend its constitution to make Southern Baptist or Wicca the state religion, for example.

Odd, then, that neither NOW's website nor People for the American Way's website even mention this horror in their litany of reasons to oppose Brown. I'll believe that's the real issue when I see people actually talking about it.

Eric "The data is certainly germane but does not contain a lot of other information that could be helpful. It certainly is not enough, in and of itself, to disprove the claim."

Jane asked that the Dems be subjected to the standard of private employers. Assuming that should be the standard, you have turned it on its ear. A private employer need not disprove a claim of discrimination. In fact, let's go through the burden-shifting process of proving a discrimination claim under Title VII.

1. Plaintiff must make a prima facie case of discrimination by showing that he/she is subjected to different treatment than similarly situated non-minorities.

I don't think you get past this first-step. There is no proof that minority nominees are treated differently than non-minority nominees. In fact, evidence presented by alkali and others showing that most minority nominees are appointed and some non-minorities are not tends to prove the opposite.

For the sake of argument, let's say this prima facie case is made.

2. Burden shifts to defendnant to show a racially neutral reason for the differing treatment of the plaintiff.

Done. Dems oppose these particular nominees because they are the most conservative nominees, especially the most conservative of those who appear most likely to end up as Supreme Court nominees.

3. Burden shifts back to Plaintiff to show that the racially neutral reason given is a pretext for racial discrimination.

This has not been shown to be a pretext at all, much less a pretext for racial discrimination. Any showing that these are not the most conservative nominees? Or the most conservative among those about whom there is a buzz of Supreme Court potential? Nope.

If the dems were subjected to the Title VII standards, they'd get summary judgment.

None of this is to say that Title VII standards should apply here. But that is the standard Jane asked to apply. Certainly not fair for Eric to decide that the Dems must prove they are not discriminating based on race. Can't imagine a conservative or libertarian applying such a standard in the usual context.

Bernard Yomtov writes Jane advanced a hypothesis. Alkali provided data that clearly refuted it. I don't think it's rude or moronoc to suggest that the hypothesis be withdrawn.
No, no, no. It should be the blogger advances a hypothesis. Someone provides data that [they believe] clearly refutes it. The hypothesis and the data are left up, and anyone can see both the hypothesis and the refutation. If the blogger finds the refutation persuasive, it is probably a good idea for the blogger to update the original post with something like "I was wrong. Poster X provided data Y." That the whole original debate thread is preserved is one of the key strengths of blogging.

In fact, I would expect someone advancing an idea to admit they were wrong when the facts show that the the case.
Ok, here is where I think some of the disagreement (and possible rancor) came from. The word "withdraw" sounded like "toss this post down the memory hole." It seems from this later comment, however, that Bernard meant something like "add an update along the lines of 'Poster X provided data Y, so upon further consideration I withdraw my suggestion.'"

Now, whether Jane's hypothesis has been refuted or not, I don't have enough data on this comment thread to decide. The core of her argument seems to be that some subset of Bush judicial nominees are treated worse if they are minority members than are similarly situated non-minority candidates. It depends on lots of data that I don't have about statistical background population of the other samples. Now, if Democrats are opposing all "very conservative" judicial nominees, or all "very conservative and on track to the Supreme Court" judicial nominees, without regard to minority status, that would be at least a partial refutation.

Let me add my impression (and this may just be the result of me sucumbing to lying GOP propoganda, but as a data point it *is* my impression), liberal activists do see to seem to be especially vehement and zealous in their denunciations of conservatives when they are also minorities. My impression is of a desperate desire to maintain a near monopoly of minority official among Democrats, and a visceral hatred of minority conservatives as being an affront to the universe. If this is not just Republican propoganda, then Democrats and liberals need to rethink how they present their arguments. (If it *is* just GOP propoganda, then try to think about how to unmask the propoganda, especially to peope who are not paying close attention.)

Finally, listening to Brown on NPR, my first reaction was "What an obvious incompetent. I don't know about all the judicial nominees, but *this* one clearly needs to be rejected." Unfortunately, my second reaction was "On the other hand, given NPR's biases, I can't rule out that they troll through lots of hearings for Bush nominees, and aggressively air segments where the nominee sounds like a nitwit, when they would avoid airing similarly nitwit quotes of a liberal nominee of Clinton's. I can't even trust that this is a representative quote of Brown's."

Really Finally. Just saw Alkali's 7:06 PM post, with details on Brown & Estrada. (Preview is your friend). It is quite plausible that particularized arguments against just a couple particular nominees are valid. This strikes me as one of the *biggest* problems with Janes hypothesis--do we really have enough samples to say anything meaningful about the populations?

"I suppose that you folks may be trying to change the arguement for lack of a rebuttal, how special."

Or, in Bernard's case, suggesting that Jane withdraw the argument altogether. He's so adorable when he's all puffed up and arrogant like that.

The DC Circuit is a showcase court from which a disproportionate number of USSC Justices are selected. The Democrats don't want conservative minorities in those seats, which is why they're taking the unprecedented step of filibustering circuit court nominees to stop it. Simple, and not rebutted by Alkali's statistical offering.

Responding to Michelle Dulak -- see today's NYT:

http://www.nytimes.com/2003/10/28/politics/28COUR.html

Another one of the issues with Brown is that she called 1937 "the triumph of our socialist revolution," which some Democrats will find offensive. (For the slower readers: FDR was President at that time, and by implication she's calling him a Commie.) Now, if the shoe were on the other foot, I would say that it's my God-given right to refer to President Reagan as a feebleminded fascist if I want to -- and, actually, I don't particularly want to -- but if I did, I shouldn't expect Orrin Hatch to be all "aw, shucks" about it.

"Odd, then, that neither NOW's website nor People for the American Way's website even mention this [incorporation doctrine] horror in their litany of reasons to oppose Brown. I'll believe that's the real issue when I see people actually talking about it."

Then what do you think is the real issue? If your standard is what NOW or People for the American Way talk about on their web site then please show me where they say 'We oppose Brown because we don't want a black person to be a judge'.

Could it be that she was referring specifically to FDR's court packing scheme in 1937 and not to FDR generally? If it were otherwise, why 1937? I'm no history student but I'm fairly certain FDR was President in years other than 1937.

They are not discriminating against minorities, they are discriminating against conservatives. A brief analysis of Article 2, Section 2, Clause 2 by my feable mind seems to give them the right to use any parlimentary tool available to do just that. I don't believe these techniques make the ordinary American have greater faith in their government. But then, more and more, the so called leaders seem to care less and less what ordinary Americans want. That's a shame.

Jim English
Chicago

Tom writes:

Let me add my impression ... liberal activists do see to seem to be especially vehement and zealous in their denunciations of conservatives when they are also minorities. My impression is of a desperate desire to maintain a near monopoly of minority official among Democrats, and a visceral hatred of minority conservatives as being an affront to the universe.

Yeah, probably true, although I would tone down "visceral hatred of" to "persistent annoyance at." The liberal feeling is that while you can sort of excuse people like Tom Delay for being ignorant, someone like J.C. Watts (for example) ought to know that conservative policies aren't good for African-Americans. By way of comparison, consider how insane the folks at the Corner get whenever some wealthy person suggests that his taxes could perhaps be raised a bit. Similar kind of deal.

Whether intuitions of that sort are at all legitimate, most people understand that it is a horrible political mistake to vocalize them: people who go after Clarence Thomas for being "ungrateful" for affirmative action just sound silly, because the argument is so textbook ad hominem. Likewise people who rage at Warren Buffett for suggesting that taxes could go up a bit.

Nowadays responsible liberal politicans and commentators treat minority conservatives pretty evenhandedly, I think, but you will still see some flare-ups from time to time. (Exhibit A: that really mean caricature of Janice Rogers Brown that appeared in a black newspaper.) But liberals get accused of giving voice to this sentiment far more than it actually happens. (Exhibit B: Ann Coulter pretending in Slander that the New York Times called Clarence Thomas, among other things, a "chicken-and-biscuit-eating Uncle Tom.")

(The response to this bit of candor will doubtless be some screeching to the effect of what a paternalistic racist I am (and other liberals are) for thinking that minorities ought to share my views on any subject. News flash: I think minorities ought to share my views, because I think everybody ought to share my views, because I think they are correct. That's why I hold those views and not other views. Spare your ranting against paternalism for the next time some conservative pundit explains how the awful Democrats have demagogued all the blacks into voting for them.)

In the case of Brown, there's probably a bit of that sentiment operating here, and to the extent there is I agree that it's unfair. In the case of Estrada, I think most Democrats see him as Ken Starr, Jr., and the racial/ethnic thing carries almost no juice.

Amitava Mazumdar graced us with the following:

"What's "quaintly cute" is that Jane has a reputation of intellectual honesty despite such throughly dishonest statements like this.

Although Amitava Mazumdar could be just about anybody's name, I'm going to go out on a limb and suggest that this was the same Amitava that recently claimed in the CalPundt talkback forums that Jane is "thin-skinned" and "doesn't handle criticism very well," and that while he has had some thought-provoking discussions here, the talkback forums are effectively dominated by unreasonable people who dismiss thought strains they don't like by attacking the arguer.

Now, if my wild assertion is correct and this really IS the same Amitava, and not some vile impersonator attempting to soil Amitava's good name by making him look like a forked-tongue fruitloop, my suggestion is that he have the good sense to disqualify himself from commenting on other persons' intellectual honesty, and simply stick to debating the merits of the question at hand -- a task to which he is far better suited.

What can we learn from this about Republicans and Democrats?

Nothing that we didn't already know. That they both try to appoint judges who agree with their own views, regardless of race or sex, and that minority status is just a way of adding political pressure.

No appointment to the Courts of Appeals, especially the DC Circuit, or the Supreme Court will ever be based primarily on the normal criteria that make a good judge again. Political concerns have always been important, but now they outweigh everything else. It will be a repeat of Bork and Thomas hearings over and over from here on out.

To whom do we owe this state of affairs? Why, to the Supreme Courts of the past who decided that the temptation to apply unappealable authority to political issues was just too great to be resisted. Now judicial appointments have become just another form of political campaign, but more vicious and intense because the stakes are so high and the time for debate so short. They have turned into searches for dreck to fling at the nominees. What a great show for the electorate. What more could we do to build confidence in our institutions?

Why should anyone be shocked at any tactic employed by either side?

In the case of Bush's nominees, however, I think he has the Dems in an untenable position, especially with respect to Estrada, because it puts the lie to the Democrats' pretense that they are the only legitimate representatives of minorities and entitled to their unquestioning support. It also shows that there are highly qualified judges, who are also minorities, who don't buy the liberal line, contrary to the myth that it represents what is best for them. If a man with Estrada's biography can rise to the top of the most prestigious elite in America, and still be conservative, maybe the liberal logic isn't as compelling as the Democrat pols would have them believe.

As I understood it the objection to Estrada was that he was an unknown quantity. Now they know he is a conservative hatchet man. Huh? Either of these could be a reason to reject his nomination. But they didn't reject his nomination, they didn't allow a vote on it.

I don't doubt that race played a factor in their nominations, precisely because the issue of race would come up. Bush has to know that he can play the race card, show how connected he is with Latinos etc, the Dems would then be in the position of defending their decision not to allow a black woman even near the SCOTUS.

This all goes back to one of Jane's points, the very fact that one can make the argument that race is a factor would land a corporate type in hot water.

Besides, I thought that we had agreed that we are allowed to use race as a factor. its not like they are applying quotas or anything!

> Should Democratic senators hold themselves to a
> lower standard than they hold private enterprise?

They always have before--why would they stop now?

AST writes:

No appointment to the Courts of Appeals, especially the DC Circuit, or the Supreme Court will ever be based primarily on the normal criteria that make a good judge again. Political concerns have always been important, but now they outweigh everything else. It will be a repeat of Bork and Thomas hearings over and over from here on out.

The Senate has confirmed 167 judges since Bush took office. The judiciary isn't collapsing because 3 nominations have been stalled. In any event, the attacks on the Pickering, Owen and Estrada nominations have not been in any way "out of bounds."

alkali the democratic faithful are annoyed with Powell because he is a liberal Republican, they hate Thomas and Rice because they are conservative Republicans. The distinction is plain to see, and leavened with the exact condescention you display on this post in your comments about JC Watts.

BTW you ignore what Jane actually writes, and in fact raise the exact lame arguments Jane predicts.

Bravo to Alkali for his/her many thorough and constructive posts to this thread.

In my experience, Jane has *not* proven herself particularly "thin skinned." She's an excellent sport given the number of critics she draws to her boards. I'm sure she will respond to alkali's evidence accordingly. It would be extremely difficult for her to stand by her original post without indulging in the kind of dishonesty that she doesn't usually practice.

I don't think its racism.

The democrats are opposing black conservatives, just like the republicans oppose white liberals.

Half of the filibustered nominees are minorities. Half of the filibustered nominees are women. Being conservative is not a reason to filibuster, it's an excuse. 'Conservative' does not equal 'bad judge'.

The only good black is a liberal black. The only good Hispanic is a liberal Hispanic. That's the message of the Senate Dems. Remember the moron congressman from New Jersey who said that Estrada wasn't really Hispanic?

How many more filibusters of conservative minorities before we call it racism? I say none. No more high tech lynchings. Bush should appoint Estrada to the Supreme Court when it comes up.

alkali,
someone like J.C. Watts (for example) ought to know that conservative policies aren't good for African-Americans.

What an arrogant statement. One can just as easily argue that 35 years of liberalism hasn't been good for minorities.

"As I understood it the objection to Estrada was that he was an unknown quantity. Now they know he is a conservative hatchet man. "

My understanding of Estrada was not that he was unknown as a conservative. Rather he had hardly any paper trial and would only answer questions in the most vague roundabout ways. This way a 'conservative hatchet man' tried to sail past the Democrats by simply having nothing in testimony or writing that could show him to be a hatchet man.

I'm sure supporters will object that Estrada both isn't a hatchet man & had an ample paper trail & answered all the questions fully. I'm just pointing out that the criticism was not self-contradicting.

alkali:

You're a fair-minded and intellectually honest liberal with whom it's a pleasure to discuss. I've googled around (dont' have LEXIS-NEXIS) trying to find more detailed data on confirmation votes. All I can find is reports from Republicans saying that we have a crisis in the federal judiciary, and the Democrats are either delaying or stopping the nomination of qualfied individuals because of petty partisan politics, and the Democrats saying that that's hogwash. Both sides quote various datum, as you have, and neither side talks openly about the race of the nominiees. So, the point regarding the federal bench as a whole is inconclusive. However, I think the original meaning of "Jane Galt"'s post was that the Democrats have opposed those conservative minority nominees who were seen as having a shot at eventually being Supreme Court Justices. We all know whom we're talking about here, and since the Estrada filibuster the point is undeniable. Now, you may say that the Democrats did not oppose Estrada because of his ethnicity but because he was a rabid conservative ideologue/was underqualified/wasn't forthcoming enough in the hearings, but, the point is that that sounds a little bit funny coming from someone who declares themself to belong to the party which generally supports affirmative action. If one supports the notion of, at least in some cases, "diversity" trumping more traditional concerns in a job applicant such as quallifications, background, merit etc., then why not in this particular case? And, if one knows that most likely all Bush nominations will be conservatives who happen to be members of minority groups, eschewing the same diversity rationale which you demand by applied to public unviersities and purivate sector employers, will inveitably assure a lack of diversity among potential Supreme Court justices for however long Bush shall be president. And, this all assumes that the complaints about lack of qualifications etc. are actually valid.

Estrada is one of the best attorneys in the US, as attested by every supervisor for whom he worked in both Republican and Democratic administrations. He provided more information to the Senate than any other judicial candidate in living memory. He balked at turning over US Dept of Justice files that did not belonge to him, they belonged to the Administrations, the Solicitor Generals and Attorney Generals he worked for. Every living Solicitor General and Attorney General has explained that these documents must not be turned over. It is a simple matter of the law of attorney/client relationship - while Estrada may have had a part in preparing the documents, the information and legal advice contained in the documents belongs to the client. The pretext that Estrada is hiding something is one of the more grotesque lies, and slanders, current in today's political discourse.

He is the "American Dream" come to life, immigrant infant (7yrs old when he arrived, IIRC) who over-achieves at every level he participates in. Opposing him was pure power politics being white-washed with knowing lies. Truely ugly.

Akhali is wrong re the opposition to the most conservative candidates. The Democrats did not oppose McConnell on the 11th, Bybee on the 9th and Tymkovitch on the (8th?). Tymkovitch argued Romer v. Evans re homosexual rights before the S.Ct. He was easily the most conservative and he got through with no trouble.

The block against the Michigan four is due to trouble with the Michigan Democratic Senators; Levin wants to make sure that his cousin gets on the Court after the GOP killed the nomination during the Clinton administration. The block against Carolyn Kuhn in the 9th is due to the fact that the California Senators are opposed to anyone who is a true conservative. The block against Pryor on the 11th is because he is too outspoken against abortion. And the block against Estrada and Brown is because they are conservative minorities who could be nominated to the Supremes if they're not stopped now. The Democrats are stopped them because they're minorities and Bush nominated them because they're minorities.

I've listened to the confirmation hearings in the Senate Judiciary Committee and, to be honest, found them offensive. I didn't like how the GOP Senate blocked Clinton's nominees but at least they didn't slander them. I say: the Democrats may filibuster whomever they like and if the voters don't like it (and it does make a difference to the base), the voters will punish them. The Democrats can do whatever they like if the voters approve.

Akhali is wrong re the opposition to the most conservative candidates. The Democrats did not oppose McConnell on the 11th, Bybee on the 9th and Tymkovitch on the (8th?). Tymkovitch argued Romer v. Evans re homosexual rights before the S.Ct. He was easily the most conservative and he got through with no trouble.

The block against the Michigan four is due to trouble with the Michigan Democratic Senators; Levin wants to make sure that his cousin gets on the Court after the GOP killed the nomination during the Clinton administration. The block against Carolyn Kuhn in the 9th is due to the fact that the California Senators are opposed to anyone who is a true conservative. The block against Pryor on the 11th is because he is too outspoken against abortion. And the block against Estrada and Brown is because they are conservative minorities who could be nominated to the Supremes if they're not stopped now. The Democrats are stopped them because they're minorities and Bush nominated them because they're minorities.

I've listened to the confirmation hearings in the Senate Judiciary Committee and, to be honest, found them offensive. I didn't like how the GOP Senate blocked Clinton's nominees but at least they didn't slander them. I say: the Democrats may filibuster whomever they like and if the voters don't like it (and it does make a difference to the base), the voters will punish them. The Democrats can do whatever they like if the voters approve.

It's a fair cop that the sample size is awfully small. I'm possibly reasoning from insufficient data -- but on the other hand, disparate impact cases also often reason from sample sizes that are too small or otherwise unreasonable.

I apologize for not making clear my original point, which was, as many have suggested, not that no minority judges will be allowed, but that no conservative minorities will be allowed to get near the Supreme Court -- hence my use of the word high court.

The argument that these fellows are wildly inappropriate extremists won't wash; if they were that extreme, they wouldn't pass a floor vote, as the moderate Republicans, of which there are a few, would kill them. The problem, indeed, is that some Democrats appear to be prepared to vote for these judges (just not enough to make a supermajority).

Democrats are attempting to use strategic tactics followed by only a tiny segment of the populace in order to keep these judges off the bench, because they can't take the political heat from an open fight. It is my impression, from what I have read and the people I have talked to who follow these things, that they are particularly concerned to keep conservative minorities who might make SCOTUS candidates off the appellate bench, because the political fallout from opposing them openly would be high. They are thus, it is argued, harder on minority candidates than white candidates of similar credentials, an argument which seems to be very strong in the case of Estrada, who doesn't seem to be cut from the Scalia/Thomas mold, and who was blocked on the grounds that he wouldn't release documents that didn't belong to him (a position backed up by Solicitors General from both parties), and wouldn't comment on how he would rule on specific cases, commentary that is generally regarded as a no-no for a judicial candidate, as witness Scalia's recent recusal on the Pledge case.

I'm certainly not under the impression that Democrats are uniquely guilty in the confirmation wars. But since it seems to me that Democrats have about a snowball's chance in hell of getting a supermajority in the Senate in the next decade or so, they should keep in mind that any tactics used now will be turned right back on them, and no one will heed their cries of how unfair it all is.

Eric Deamer writes:

Now, you may say that the Democrats did not oppose Estrada because of his ethnicity but because he was a rabid conservative ideologue/was underqualified/wasn't forthcoming enough in the hearings, but, the point is that that sounds a little bit funny coming from someone who declares themself to belong to the party which generally supports affirmative action. If one supports the notion of, at least in some cases, "diversity" trumping more traditional concerns in a job applicant such as quallifications, background, merit etc., then why not in this particular case?

The standard liberal line is that affirmative action doesn't mean trumping merit, it just means looking beyond traditional credentials. Here, that happens to really be true, because there are lots of Republican Hispanic judges with top-notch credentials you could name to the Supreme Court other than judges on the DC Circuit. (Thanks for your other comments, incidentally.)

Steve Malynn writes:

He is the "American Dream" come to life, immigrant infant (7yrs old when he arrived, IIRC) who over-achieves at every level he participates in. Opposing him was pure power politics being white-washed with knowing lies. Truely ugly.

The "American Dream" stuff is oversold. His father was a corporate lawyer in Honduras and his mother was a bank executive. He came to the United States with his mother after his parents divorced. I agree his resume is impressive, but the way he was talked up you'd think Elian Gonzalez was the nominee.

I agree with the "power politics" part; I don't agree with the "knowing lies" part.

DIH writes:

Akhali is wrong re the opposition to the most conservative candidates. The Democrats did not oppose McConnell on the 11th, Bybee on the 9th and Tymkovitch on the (8th?). Tymkovitch argued Romer v. Evans re homosexual rights before the S.Ct. He was easily the most conservative and he got through with no trouble.

McConnell has a lot of liberal law professor friends who vouched for him and was publicly angst-ridden about Bush v. Gore, so despite his other conservative credentials he got a pass, rightly or wrongly. Tymkovitch wasn't a target because Dem pols tend to lose their spines on gay issues. Bybee I don't know about.

DIH further writes:

I've listened to the confirmation hearings in the Senate Judiciary Committee and, to be honest, found them offensive. I didn't like how the GOP Senate blocked Clinton's nominees but at least they didn't slander them.

I think "slander" is a strong term, although I agree the Dem senators can be rude on occasion. I would point out that a lot of Clinton's nominees never even got committee hearings, so they paid a price for being spared that indignity.

Estrada's nomination was hurt during his hearing before the Democratic-controlled Judiciary Committee when, in the course of stonewalling, he outright lied in response to one question and was backed into a corner on it within a matter of hours. This is simply Not Done when you wish to ascend to a lifetime position in the federal judiciary. It was a very big deal at the time.

This is simply misleading. Democrats are not anti-minority on the bench. They are against candidates they perceive as "reactionary". This includes Estrada, Brown and Pickering (clearly not a minority candidate!)

Using the anti-minority argument is simply a shill's spin. Democrats I suspect would be confirming slightly right of center candidates, regardless of race.

"He's so adorable when he's all puffed up and arrogant like that."

M. Scott Eiland, humility personified, speaks.

Jane Galt writes:

They are thus, it is argued, harder on minority candidates than white candidates of similar credentials, an argument which seems to be very strong in the case of Estrada, who doesn't seem to be cut from the Scalia/Thomas mold, and who was blocked on the grounds that he wouldn't release documents that didn't belong to him (a position backed up by Solicitors General from both parties), and wouldn't comment on how he would rule on specific cases, commentary that is generally regarded as a no-no for a judicial candidate, as witness Scalia's recent recusal on the Pledge case.

I agree that the grounds talked up in public -- document release, etc. -- would not have torpedoed a candidate without Estrada's baggage. I would take issue with the suggestion that Estrada "doesn't seem to be cut from the Scalia/Thomas mold" -- he's a young conservative activist with no paper trail. That pretty much is the Scalia/Thomas mold. I doubt that the Democrats are going to be willing to confirm any SCt candidate without some gray hair and at least 10 years on some bench, which are not bad criteria regardless of political considerations.

I'm certainly not under the impression that Democrats are uniquely guilty in the confirmation wars. But since it seems to me that Democrats have about a snowball's chance in hell of getting a supermajority in the Senate in the next decade or so, they should keep in mind that any tactics used now will be turned right back on them, and no one will heed their cries of how unfair it all is.

I think the Democrats shouldn't be under any illusions that complaints of unfairness will be heard under any circumstances. They were pretty much punked on the change to the blue slip rule and no one seemed to care.

"I'm certainly not under the impression that Democrats are uniquely guilty in the confirmation wars. But since it seems to me that Democrats have about a snowball's chance in hell of getting a supermajority in the Senate in the next decade or so, they should keep in mind that any tactics used now will be turned right back on them, and no one will heed their cries of how unfair it all is."

It seems you have backed down entirely from your 'Democrats are violating racial discrimination laws' post. It's pretty clear that you are admitting the main criteria for opposition appear to be:

1. Is the person conservative?
2. Is the person likely being groomed for a SCOTUS position?

These are race neutral criteria. As Liz showed, even if this has a racially disperate impact it would almost certainly not violate the civil rights laws so the Democrats are not holding themselves to a lower standard than private corporations (BTW, since its not like Civil Rights laws are a Democratic position anymore, nearly all of the Republican Party post-Strom Thurman supports the Civil Rights Acts these days).

Eric falls back on argument by sterotype. I'm not sure if there is a formal fallacy for this style argument but I first noticed it with Hillary Clinton. First the person puts ascribes a sterotypical position to the target and then accuses the target of failing to live up to the sterotype. For example, this was how it was typically applies to Clinton:

"So Hillary was a radical feminist, yet when her husband had an affair she didn't divorce him...she decided she was going to 'stand by my man'!" Of course, being a feminist doesn't mean one believes a woman should *always* divorce her husband. In fact, most feminists would probably say the woman should have the choice whether or not to divorce her husband.

He writes:

"If one supports the notion of, at least in some cases, "diversity" trumping more traditional concerns in a job applicant such as quallifications, background, merit etc., then why not in this particular case?"

So the sterotype is 'Democrats support affirmative action, which means unqualified blacks & minorities get the job whenever possible'...therefore they should have supported Estrada even if they thought he wasn't qualified. Whether or not one supports affirmative action, I've yet to see it applied directly to politics where one party should be expected to support the opposition entirely out of racial concerns. It's even more interesting to see the right wing, which would balk at granting any perference for people taking a cab drivers license exam demand affirmative action for judicial nominations.

This leads to a final point that Jane totally ignored. If a minority nominee to the Supreme Court is something that would be politically difficult to oppose, then how does it follow that the discrimination is happening on the Democratic side? It would seem that the Republicans have an equal incentive to nominate minorities who are more conservative than they would have other wise nominated thereby taking advantage of the Congress's reluctance to oppose a minority. Would this not be racial discrimination against moderate whites who are denied nominations on racial grounds?

Boonton, alkali:

I still don't see how, if no one can find out Estrada's views on anything (claim one), anyone can be certain that he is a "conservative hatchet man" (Boonton, quoting someone else further up that I was too lazy to find) or a "young conservative activist" (alkali). I mean, if "everyone" knows this, how do they know? Public speeches? (No, that would involve a "paper trail.") Personal conversations with the man? Rumor? Psychic powers? Or is it just that if you belong to the Federalist Society you are obviously a hatchet-wielding Constitutiocidal maniac?

Coulter referred to herself and other attorneys who participated in strategizing lawsuits against President Clinton, including the Paula Jones lawsuit, as the "elves." Other "elves" were George Conway, Jerome Marcus and Richard Porter. Conway and Marcus are said to have ghostwritten the appellate and Supreme Court briefing on Jones v. Clinton. Coulter is said to played copies of the Lewinsky-Tripp tapes for her fellow elves prior to the deposition of Clinton in the Jones case, which was instrumental in setting the perjury trap that was sprung at that deposition.

Coulter and Conway, at least, are close personal friends of Estrada, and Coulter has refused to say whether Estrada was among the "elves" or assisted them. Noscitur e sociis, as the Romans used to say.

"Coulter is said to played copies of the Lewinsky-Tripp tapes for her fellow elves prior to the deposition of Clinton in the Jones case, which was instrumental in setting the perjury trap that was sprung at that deposition.

Coulter and Conway, at least, are close personal friends of Estrada, and Coulter has refused to say whether Estrada was among the "elves" or assisted them."

Ah, so the Democrats in the US Senate are practicing payback for being forced to stand up for Our Bill in the light of unmistakable perjury and obstruction of justice? They could just say so and be done with it. Sore Loser behavior is pretty much SOP for them in recent years--people would understand that.

alkali: "Noscitur e sociis" is politely translated as "Know a man by the company he keeps," but in plainer English we are talking about guilt by association, yes?

Not guilt -- the question was why the Dems thought he was a GOP activist. Likewise, if I spent all my free time hanging with Carville and Franken, I wouldn't ask Sen. Cornyn to do me any favors.

alkali: Mary Matalin spends a great deal of her free time hanging out with Carville, and no one suspects her of being a Democratic activist.

True, but Matalin had shown rather conclusively that she was *not* a Democratic activist before she hooked up with Carville. (As I recall, she was communications director for the Bush '92 campaign or something like, and that was the capstone to a decade-plus record of work as a GOP communications person.)

Other than sheer contrarianism, I'm not sure why you are fighting this so hard. That the Democrats oppose Estrada because he's a hardcore GOP activist doesn't make him a bad guy; it just explains why the other team doesn't like him. I don't think the Dems are wrong to oppose him, but I don't think they deserve a medal for it.

Brittain33, I am not familiar with the testimony you reference, could you identify what lie Estrada was confronted with?

Alkali, you keep on shifting why Estrada was black-balled: was it "stealth-conservative" with no paper trail, or pay-back for being a "conservative hack". I see you've walked away from the "not qualified" crap. But, are you saying some immigrants are less deserving than others, because their daddy in Honduras was too rich? Do you have any information that Estrada was not a self-made success?

Steve, you can read about it halfway under the Roe B-head in this article. http://www.msnbc.com/news/881060.asp?0si=-

Estrada denied that he ever tried to dissuade students from applying to clerk for Kennedy because they were "too liberal." Then he was caught by some quotes in The Nation contradicting the claim, and he managed to make the situation worse and worse with his responses until he conceded that he had lied earlier to the Senate. It was seen on both sides as a great defeat for Estrada.

The transcript is here:
http://rpc.senate.gov/releases/2003/Estradaafternoonhearing.htm

Simple question: how many nominees did the Repugnicans stop Clinton from appointing?

Hint: a lot more than the freaking two the Dems have stopped.

Hello, Pot? This is kettle.

alkali: I'm "fighting this so hard" because I think Estrada has been smeared, by tactics that would be called McCarthyite in an instant had they been used by Republicans.

Seriously, if a candidate for a judgeship were labeled a "liberal activist" on the sole evidence that she was a close friend of James Carville and of Hillary Clinton, would you buy it? It's absurd on its face. As a somewhat isolated conservative in Marin County, I can say frankly that I have massive political differences with almost all of my close friends. I would hate for anyone to draw the conclusions from my friendships that you draw from Estrada's.

Brittain33, in neither the article nor the transcript is Estrada lieing. He is questioned about dissuading clerk candidates based on political persuasion in freaking 1988 when he was 22 years old, and replies that he did not. Estrada then goes to great lengths to explain what his function in the interview process was, committing the great error in an adversarial questioning: answering more than what was asked.

When confronted with these anonamous accusations, Estrada assumes his accusers had in good faith misunderstood him, and he tries to explain how such an incorrect impression could be created.

Schumer calls him a liar at the hearing (well, "questions his credibility"), but there is no evidence that any part of Estrada's explanation was wrong. Aslo my impression is that the interrogation started with the article, not that the article was used to catch him in a lie.

Here is the MSNBC excerpt:

Estrada, who clerked for Kennedy in 1988 and 1989, at Kennedy’s request has occasionally interviewed young lawyers seeking to clerk for the justice.
An article in the Nation magazine, which opposes Estrada’s nomination, cited two anonymous sources who alleged that Estrada had told them they were too liberal to work for Kennedy.
At first Estrada denied that he had said any such thing. As the day went on, he hedged his testimony, saying, “If I said anything remotely on that subject,... it could only have been a joke.”
He added that in screening applicants for Kennedy, “if I think that the person has some extreme view that he would not be willing to set aside in the service of Justice Kennedy, I would make sure that Justice Kennedy would know that.”

* * *

This report from MSNBC is almost neutral, but glosses over the fact that Estrada continued to deny "he ever tried to dissuade students from applying to clerk for Kennedy because they were "too liberal."" I read the transcript you kindly linked, and have a different reaction than "he buried himself deeper and deeper." I think he gave ammo to those who are inclined to think/argue he was lieing, because he tried to clarify an unclear question in his testimony.

To date, I have never seen the two anon. applicants "out" themselves to contradict Estrada's testimony, nor have I seen any other evidence that Estrada's recollection of his duties in 1988-89 was false.

So you are calling Estrada a liar because he remembers 1988-9 differently than two people who claim not to have gotten the clerkships they wanted because of him, but do not have the balls to be named, or to tell their story beyond snipes to the opposition researchers, I meen the Nation.

Estrada expected a professional disection of his credentials, instead he got divorce court.

Seriously, if a candidate for a judgeship were labeled a "liberal activist" on the sole evidence that she was a close friend of James Carville and of Hillary Clinton, would you buy it? It's absurd on its face.

I probably would. I assume most of their mutual friends are hardcore Dem politicos.

Note also that Estrada is a member of the Federalist Society, and left a lucrative partnership position to take a senior legal post at Justice under Theodore Olson. You can be pretty certain he didn't vote for Gore last go round.

Alkali, your problem with the Federalist Society?

alkali:

I probably would. I assume most of their mutual friends are hardcore Dem politicos.

And likewise anyone who had two "close personal friends" who were Communists would be likely a Communist? I mistrust this, shall we call it, "affinity-by-association" business. As I said, nearly all my close friends are far to the left of me. I don't think anyone should draw conclusions about a man's views from the views of those he calls friends.

Note also that Estrada is a member of the Federalist Society,

Ah, yes. I had noted it, in a post above, though I was hoping that I was making a joke.

and left a lucrative partnership position to take a senior legal post at Justice under Theodore Olson. You can be pretty certain he didn't vote for Gore last go round.

No one doubts that the man's a Republican, alkali. The question is whether he's a "conservative hatchet-man," activist, whatever. I repeat that there isn't any evidence.

Alkali, if you were under any misimpression that George Bush is going to appoint Democrats to the court, I'll concede the point: he isn't. Estrada is certainly a Republican, just as (gasp!) Bill Clinton's nominees were all Democrats!!!! That doesn't make Estrada "a conservative hatchet man".

"I still don't see how, if no one can find out Estrada's views on anything (claim one), anyone can be certain that he is a "conservative hatchet man" (Boonton, quoting someone else further up that I was too lazy to find) or a "young conservative activist" (alkali). I mean, if "everyone" knows this, how do they know? "

Economics is a good profession for lazy people. Instead of spending a lot of time figuring out Estrada's record or lack thereof, I'll treat it as a game:

Bush: Wants to put Conservatives on the court
Dems: Know Bush will put people on the court, want to force him to pick moderates instead of Conservatives

So let's say Bush selects Mr. X. He is a minority, which is a popular choice, and his views are uncertain but it is known he tends to hang out with Conservatives (Federalist society, Anne Coutler etc.).

Dems facing this can make two assumptions:

1. Mr. X is a moderate who, being a minority, would make a popular choice. If this is the case then Dems should support him.

2. Mr. X is really a Conservative. If this is the case then Dems should oppose him.

Say Dems assume Bush is playing this game rationally (chuckle). Then what was Bush thinking when he appointed Mr. X?

1. I'll appoint a moderate even though I'd rather have a Conservative. This appointee will be popular because he is a minority but he doesn't advance my goal very much. I'll save the Conservative appointments for unpopular white guys.

2. I'll appoint someone I know to be a Conservative but there his views are not well known for certain beyond myself. This person, being a minority, will be hard for the Dems to oppose therefore I'll accomplish my goal.

Now I just used 'nice' terms here. You can make 'Conservative' 'Radial Right Winger' or whatever you wish but it's quite clear that if anyone here has racial motives it would be Bush.

So Boonton, it is even more simple than Alkali's guilt by association, if Bush nominates, the nominees must be opposed. No matter that Brown was re-elected in California (where Arnold is the first R to win state-wide in two election cycles) by a vote of 76%, she's a right wing idealogue.

Boonton: I said I was lazy, but I didn't say I was an economist (heaven forfend!). Or were you the lazy economist? Or Jane/Megan? Oh, never mind.

Look, your account is pretty good as far as it goes. I have no doubt that the Bush team is looking for exceptional minority and female judges of a conservative bent, and trying to get them on circuits that place them for the Supreme Court. They would be fools to do anything else.

But why women and minorities? Because Democrats will have a harder time voting against them when (or if) it comes to a vote. You say Bush has "racial motives." I say Bush is using the Democrats' "racial motives" against them. I don't think Bush cares what the racial/gender makeup of any particular Court is; but he has Congressional opponents who do care. If he can exploit their, um, preferences to select the kind of judges he wants, why should he not?

(And, once more, if these picks are so bloody awful, why not a floor vote? Why the filibuster?)

"But why women and minorities? Because Democrats will have a harder time voting against them when (or if) it comes to a vote. You say Bush has "racial motives." I say Bush is using the Democrats' "racial motives" against them. I don't think Bush cares what the racial/gender makeup of any particular Court is; but he has Congressional opponents who do care."

Actually they don't care. Democrats would rather there be two Ruth Bader Ginsbergs on the court than one Thomas. That Thomas is black doesn't count as a point in his favor with Dems. Isn't that something and advocate of color-blindness would approve of?

"If he can exploit their, um, preferences to select the kind of judges he wants, why should he not?"

Well if you look at it as a game then he should maximize his opportunity of 'winning'. If a minority appointment generates positive excitement and his goal is to put Conservatives (not moderates) on the court then it would be rational to assume any minority appointed would have to be a Conservative. The only ways out of that conclusion would be if the following assumptions were flawed:

1. Bush is rational. (hehe)
2. Bush does not seek to put Conservatives rather than Moderates in the courts.
3. The public does not generally feel favorable towards minority appointments.

All three are possible, however the GOP has been hawking on the minority angle so much that its pretty hard to believe the public does not at least have some modest support of minority appointments...even if it is just by default.

Of course, the GOP would have us believe Bush is rational. It may be possible that Bush doesn't necessarily want Conservatives on the court. But it seems advocates of Conservatives on the court are much more active than advocates for moderates (and I'm sure Bush knows he will never win over supporters of liberals on the court) so it would be odd if Bush didn't seek to use court appointments as a way to please Conservatives.

If my assumptions are correct, then Bush has a motive to take race into account when nominating. The Dems do not have an incentive to take race into account when deciding who to oppose...except to the degree Bush is using race as a criteria.

Boonton, it's also quite possible that Bush thinks he is appointing a hidden conservative hatchet man, but is in fact appointing a hidden moderate. Nixon, Reagan, and Bush 41 appointed most of the present Supreme Court justices, but several of them turned out to be far less conservative than everyone thought. (If they'd got what they expected, the SC would already have been tilted too far to the right by 1992 for Clinton's appointments to matter.) This doesn't really invalidate your reasoning, it just makes it quite possible that the Dems are recklessly spending what little political capital they have left on blocking the wrong nominations.

Someone claimed that Estrada is not "Hispanic enough." That's almost a tautology by the Democratic definition - if he's a Republican, he sees other issues as being more important than membership in the Hispanic political pressure groups, and pressure group politics is about the only real power the Dems have left. They've got some real problems in trying to define everyone of Spanish-speaking ancestry as a "Hispanic" group, though. Being Hispanic is cultural, not genetic. I've known many middle and upper-middle class Mexican-Americans who speak perfect English and little or no Spanish, and come from families that lived in the Southwest states since long before they became a part of the US - I very much doubt they'll appreciate a politician lumping them in with illiterate illegal immigrants looking for sub-minimum wage jobs and/or welfare.

Classifying Estrada with those that are too unambitious to learn enough English to qualify for a decent job, simply on the basis of skin color and a name that ends in a vowel is real racism - whether it's a neanderthal looking for "greasers" to bash or a liberal looking for a voting block too gullible to notice how racial identity platforms hurt them in the long run. And in following their imperative to try to classify everyone into some pressure group, the Dems may well perceive conservative "minority" nominees as far more outrageously conservative than old white men with the same views.

"Boonton, it's also quite possible that Bush thinks he is appointing a hidden conservative hatchet man, but is in fact appointing a hidden moderate ... This doesn't really invalidate your reasoning, it just makes it quite possible that the Dems are recklessly spending what little political capital they have left on blocking the wrong nominations."

Actually this would be arguing against the first assumption, that Bush is rational. If Bush seeks to put Conservatives on the court & if minority appointments are politically powerful, Bush would be irrational to waste a minority appointment on someone he didn't make sure was a Conservative. Granted it wouldn't be the first time a President acted irrationally but from a game theory point of view would it be wise for the Dems to take a chance?

"Classifying Estrada with those that are too unambitious to learn enough English to qualify for a decent job, simply on the basis of skin color and a name that ends in a vowel is real racism -"

I'm not sure its really fair to call the Republican party racist because they called Estrada Hispanic. I'm pretty sure Estrada self-identifies himself as Hispanic. All racial categories are partially (or mostly) subjective.

"They've got some real problems in trying to define everyone of Spanish-speaking ancestry as a "Hispanic" group, though. Being Hispanic is cultural, not genetic. I've known many middle and upper-middle class Mexican-Americans who speak perfect English and little or no Spanish, "

And many of them would probably self-identify as Hispanic as I would identify as half-Italian even though I'm two generations removed from any real knowledge of Italian. I don't think the idea of Hispanic as a racial/cultural group is offensive because it includes poor people who cannot speak English. I don't get offended at being called white even though so-called 'white trash' would also be called white.

Republican judicial nominees over the last few decades can generally be classed into one of two types. The first are typefied by Justices such as Harlan, Powell and Souter. They tend to be conservatives in an old-fashioned sense--respectful of precedent, preferring to decide cases on fairly narrow grounds, always trying to balance the competing interests in the case before them, generally opposed to broad rulings that break new ground.

The second type are represented by Justices Rehnquist, Scalia and Thomas. They are conservative activists who have a definite agenda which includes overturning many of the most significant cases of the past 40-50 years.

Given the facts that 1) President Bush has explicitly stated his preference for the Scalia-Thomas sort of judge and 2) virtually all of his nominees with any sort of paper trail are clearly of that type, and also given that Republican activists who care about this issue are clearly on the alert to keep any future Souters off the courts, is it really that unreasonable to presume that Estrada was another conservative activist nominee?

And can people who favor Estrada, Brown, etc., at least acknowledge that, while you do not agree with them, there are intellectually respectable arguments against the sort of conservative activism practiced by Scalia, et. al., and therefore that opponents of Estrada and Brown may in fact have a non-evil basis for doing so?

Mark, you have the talking points down, back it up with evidence. IMHO, Scalia, Rhenquist and Thomas are not judicial activists, and do not legislate from the bench. Cite a case and lets rumble.

Steve, you should read the recent book "Narrowing the Nation's Power," by John Noonan. Noonan is a conservative federal judge--a Reagan appointee to the 9th Circuit, IIRC, as well as the author, back of the 1970's, of a book on abortion much praised at the time by conservatives--but he is shocked by many recent decisions of the Rehnquist Court, such as the recent "sovereignty immunity" cases.

Mark, I'd consider Judge Noonan as more of a progressive than a conservative. As an academic he certainly was more conservative than the norm, but that is really a different scale.

I'll check out the book -- but, my first impression is to note that "Narrowing the Nation's Power" was exactly the intent of the drafters of the Constitution: strictly enumerated powers.

Mark:

1) President Bush has explicitly stated his preference for the Scalia-Thomas sort of judge and 2) virtually all of his nominees with any sort of paper trail are clearly of that type[.]

If that is so, why haven't there been more nomination fights? The vast majority of Bush's nominees have been confirmed easily. But if I'm reading you correctly, they either looked like Scalia on paper, or else had no paper record at all. Why then the sustained opposition to Estrada in particular? From your own account, it sounds as though he was just like a few dozen nominees that sailed through without a hitch.

Or am I missing something?

From a game theory point of view the candidate without a paper trail is the most dangerous of all. If the assumptions I outlined are true, then the 'paperless' appointee would almost certainly be the most conservative of all. If Estrada was Super-Right-Wing(tm), then Bush would have the most to gain from keeping that quiet and the most to loose if it got out.

Other elements are present in the game too. Opposing candidates is not without cost. Simply blocking every single appointment would carry a serious cost for the Dems. As with makeup, a little is more when it comes to blocking nominations.

Boonton: The game-theory analysis is good as far as it goes, but it doesn't square with Mark's data. If "virtually all" of Bush's nominees "with any sort of paper trail" are Scalia-Thomas clones, and the others are (by hypothesis) even further right, why were almost all of them so easily confirmed? Why the fight over Estrada in particular? Why was his such an important case, if his profile is just like that of dozens of other nominees who sailed right through?

Why indeed Michelle? You are telling us that Estrada was a carbon copy of every other Bush appointee. It's not his race since we know there have already been Hispanic appointees confirmed. What could it be then? Perhaps you view of the case is wrong. Maybe Estrada's paper trail was lacking & his friendship with Coutler raised enough eyebrows to make him appear to be a Trojan Horse.

Also another possibility might be simply that Estrada pissed the Dems off. Perhaps they viewed his work with Coutler (who is about as shrill a GOPer as one can get) & trying to be shy about responding to questions as a show of disrespect from the Bush administration. Blocking his nomination on dubious charges would really be payback.

I've seen it in office politics more than a few times, if you don't make friends then you won't get any slack for even the most minor of slip ups.

Boonton:

You are telling us that Estrada was a carbon copy of every other Bush appointee.

Um, no, I didn't say that. That was Mark's hypothesis — that the Bush appointees with paper trails were all Scalia-Thomas clones, so the ones without were probably the same. To which you added that the ones without were probably further right than the ones with. I didn't call Estrada a carbon copy of anyone; I just pointed out that on your and Mark's hypotheses there is nothing to distinguish him from several dozen other appointees who were confirmed without incident.

And . . . oh, well, I said it before, but it didn't "take": it's ridiculous to judge anyone's politics by the politics of their friends. At least, if anyone tried that with me they'd be making a big mistake.

Well 'friends with Coutler' is just a short hand way of describing everything that was discussed above including the possibility that Estrada was an unpaid consultant on the legal attempts to get Clinton. It isn't like Estrada signed an office birthday card for Coutler therefore Dems assume he is a Coutler clone...

Boonton: I assume you're referring to alkali's text way up the thread, which says that there were many "elves" working on the Paula Jones case, and that Ann Coulter would neither confirm nor deny that Estrada was one of them. I don't really see how someone providing zero information amounts to evidence, but whatever.

By the way, it is "Coulter," not "Coutler"; a one-off typo is one thing, but the twelfth time you do it you start to look a little foolish.

Point taken Michelle. But the Coulter doesn't exactly provide no information, does she? 'I neither confirm nor deny' sometimes carries a bit of information...something like 'I know this will take the discussion somewhere I don't want it to go so I'll neither confirm nor deny and hope that throws you off the trail'.

So maybe the Coulter was all made up but from the game theory POV Dems were correct to smell smoke.

Fuzzy Right-Wing Math

So let's see -- Bush nominated 23 minortiy judges, 19 of them were confirmed, and just one was defeated (three are pending).

Do right-wingers simply hate minorities or are they just willing to say anything to advance their ideological agenda?

I respond here: http://stuartbuck.blogspot.com/2003_11_01_stuartbuck_archive.html#106796407351384917

Comments are Closed.