Asymmetrical Information

Quasi-legislation? Where'd that come from?

And the Democrats have been packing the bench? Let's see... since the start of the Nixon administration, the White House has been in Republican hands for 24 of 36 years. Which means that for the past 36 years, about 2/3rds of the judges appointed to the Federal bench were appointed by Republicans.

Doesn't smell like bench-packing to me.

Even though they were rhetorical questions, the answer is 14. Ooops, sorry, I meant, NO!

I was speaking of the bench-packing that began under FDR and resulted in the Warren and Burger courts.

Hear, hear! This whole fiasco is merely a test of strength and I'm afraid that, once again, the Republican party will cut and run. As I said in an email to Richard Lugar, "Time to grow a pair else what's a Republican majority worth"? All the best, Terry Reynolds

Filibustering is a gentleman's agreement that the Senate
invented; it certainly isn't in the constitution. Now
if there wasn't a gentleman's agreement to not filibuster
judicial nominations, how do we explain the lack of
such filibusters prior to Bush?

Were past democrats and republicans somehow better than
those of today?

(And yes I know about the two squashed attempts at the
end of Clinton's terms -- squashed by fellow republicans
-- and the one incident in 1968 which on closer examination
I'm not even sure is quite what some today claim it to be).

Or do people think that past politicians were just too
dumb to think of filibustering nominations even though
they used it other contexts?

The idea that there was not an understanding that filibustering
nominees was wrong seems implausible on the evidence.

And likewise the assertion that what the democrats are
doing today is ok is hard for me to understand.

I was speaking of the bench-packing that began under FDR and resulted in the Warren and Burger courts.

There was about twenty-year period from 1933 through 1953 (except for two years) during FDR and Truman when Democrats controlled the Presidency and Senate. This was also the case for 8 years under JFK and LBJ, for 4 years under Carter, and the first 2 years under Clinton.

In contrast during the post-war period Republicans controlled both the Senate and Presidency for 2 years under Eisenhower, 6 years under Reagan, and 4 years under President George W Bush.

All is fair in love and war, and politics too.
Politics is a play of power, not of "genlemen's agreements".

"Filibustering is a gentleman's agreement that the Senate invented; it certainly isn't in the constitution."

Those were no gentlemen in 1837 when the idea first occurred to a group of anti-Jackson Senators. But, Jane is exactly right. This is about parliamentary maneuvering. Not about 'right and wrong'.

Mark -

Why didn't prior politicans filibuster judicial nominees? Justice Scalia, in Planned Parenthood v. Casey, gives the following answer to your question: "As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here -- reading text and discerning our society's traditional understanding of that text -- the public pretty much left us alone." In other words, before the high court started taking political issues like abortion, gay sex, and etc. away from the people, neither party had any need to make the process of nominating judges political. But once the court got into politics, the politicians responded. With filibusters, or at least the threat of them.

In other words, before the high court started taking political issues like abortion, gay sex, and etc. away from the people, neither party had any need to make the process of nominating judges political.

Which explains why the Dred Scott decision resolved the issue of slavery in the United States once and for all, and why FDR said "oh, never mind, then," when the Court held major chunks of the New Deal unconstitutional, etc. Or maybe the line between "law" and "politics" has never been all that sharp.

Jane is wrong here. Democracy is all about valuing procedure above results and it only works if both sides agree with that value.

The Senate has a long term agreement that a minority can stop action if it feels strongly enough to stage a filibuster. That agreement has always been changable, but changing it this way will alter the nature of the Senate forever.

Of course, it's up to the majority to force the minority to hold the floor 24-hours a day to prove their determination, and the Frist people have neglected to really test the mettle of the Reid people.

If that agreement to have filibusters is removed, it will be much easier to move legislation through the Senate. Minorities will find it much harder to protect their interests. And individual senators will lose most of their power to the Senate leadership.

It is the last effect (senator power shifting) that is why the filibuster rule will probably survive tomorrow in spite of the power of the president and the Republican leadership to give and withold favors to get their way.

If the change could be limited to one subject or one vote, the Fristites would win solidly, but this is forever. Once done, it cannot be reversed.

As far as this being a particularly important subject, remember that pretty much all of Bush's appointments are confirmed. The only conflicts are over a few symbolic judges who made noticably bad decisions in their previous jobs and a circuit or two where Democratic senators want the circuit rearranged.

I was speaking of the bench-packing that began under FDR and resulted in the Warren and Burger courts.

Earl Warren, the Republican candidate for Vice-President in 1948, was nominated by Eisenhower. Warren Burger was nominated by Nixon.

It maybe a fine distinction but it's still a distinction, and there is plenty of evidence that if a super-majority for confirmations was intended the Constitution would have been written that way.. for example

from Article 1, Section 3

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

from Article 1, Section 5

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

from Article 1, Section 7

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

and

from Article 2, Section 2

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;....

Eisenhower and Nixon governed as liberals, even though they campaigned as pseudo-conservatives. Compared to Robert Taft or Ronald Reagan, even their campaigns weren't terribly conservative.

First, according to Ann Althouse, it seems as though the founders understood "advise and consent" as meaning that if no more than 2/3 of the members OBJECTED to the nominee, than that nominee would get confirmed. So, in fact, advise and consent doesn't even necessarily involve a simple majority.

Second, yes yes you're right Warren and Berger were nominated by Republicans, as were David Souter and John Stevens. But clearly, all were very liberal justices. Why is it that it never turns out that appointees of Democrats turn out to be really conservatives or libertarians? Either way, liberal judges dominated the Courts until very recently (whether they were liberals nominated by Eisenhower/Nixon or Clinton/Carter)

And why is Souter even on the Court? He was a rather political unkown as a Circuit judge in New Hampshire. So, Bush Sr. nominated him in order to avoid the kind of fight that we had with Bork since there would be little ammunition against him in a confirmation fight. If we politicize the judiciary to the extent the Democrats did starting with Bork, then we will have a judiciary of Souters and O'Connors. And it's not bad because Souter is a liberal (e.g. Ruth Ginsburg is a great justice though I disagree with her), but because he (and O'Connor as well) is way out of his depth.

Third, why is it that all of those who hold New Deal jurisprudence so sacred never think about how that jurisprudence came about? The Court Packing threat from FDR was probably one of the most extra-legal proposals imaginable and the SC decided all of a sudden to acquiesce to his programs. So, please, cut out the sanctimony about politization of the Courts on the part of the Republicans.

Last time I looked, there were eight other judges on each of those courts.

Last time I looked, there were eight other judges on each of those courts.

And is your contention still that the court was "packed" by the Democratic presidents? When Warren Burger was appointed, he replaced an Eisenhower appointee and joined three other justices who were appointed by Eisenhower. Nixon's second nomination, Blackmun, made it five justices appointed by Republican presidents.

It is true that by the end of the FDR/Truman administrations that the dems had nominated most of the justices. Of course, when FDR took office, I believe there were seven judges nominated by Taft/Harding/Hoover.

If this was 1953, you'd have a case that the court was "packed" by the Democrats, replacing the court that was "packed" by preceeding Republican administrations. But by the end of Eisenhower presidency, who named five justices, your case would have slipped.

In the current era, with seven of the justices nominated by Republican presidents, the idea of trying to undo a court packed by the dems is just silly.

Let me draw the somewhat finer point I was trying to make, rather than the one I apparently did. I'm not accusing the Democrats of having done anything underhanded, nor do I particularly care who nominated the judges. Liberals got the courts from about 1938 to the Reagan administration, during which a lot of liberal things happened, including the explosion of court-granted rights in the seventies. Having essentially put many of those new rights out of legislative review, liberals (who are now mostly confined to the Demcratic party) are now fighting tooth-and-nail to keep conservatives from being nominated to the courts, for fear that they will "undiscover" all those new constitutional rights.

I don't think there's anything wrong with this tactically, although I am concerned about the increased use of the courts and the Commerce clause to drive results that were formerly left to the legislatures. But liberals seem to have come to believe that it is in principle wrong to nominate judges who will significantly change key law in your favour, even though this is how the liberals got the law they are now trying to protect from conservatives. This is silly. Again, this is not a question of, say, whether one passionately believes that abortion should be legal, but that nominating a judge who will undo Roe is somehow clearly and substantively different in some metaphysical from nominating a judge who will put Roe into place.

"Why didn't prior politicans filibuster judicial nominees?" For one thing, they had less public (and more unfair) methods of blocking an up or down vote, such as "blue slips". IMO, moving from a system where one Senator could keep a nominee from ever getting out of committee simply by tossing a piece of paper in the trash, to a system where it takes 40 Senators, including some that are willing to look like total fools on CNN for hours and hours, is a clear improvement.

Second, filibusters used to be an extreme option. The filibusterer actually shut down the entire Senate for as long as he could manage to stay on his feet and keep talking. IIRC, a few old dinosaurs filibustering against the 1964 Civil Rights Bill managed to keep talking 24 hours a day for months, reading from the phone book and using buckets for you know what... They were committed to their cause to the bitter end, and the majority also thought it was quite important, otherwise they'd have dropped the bill instead of spending months waiting it out. Rules changes since then have made filibusters much tamer. First, the 60% cloture vote. Second, the filibuster is no longer a continuous marathon that stops all other business; instead, they allocate blocks of time for filibustering, alternating with other blocks in which other business gets done, but the filibusterers can rest. It makes filibustering much easier.

I like Frist's 100 hour rule. I'd prefer to see that implemented as 100 continuous hours - someone has to stand up and talk continuously for over 4 days, so it won't be used on a whim - and shutting down the Senate for a week is enough respect for a dedicated minority.

It's funny; my husband I and have been having our most acrimonious "discussions" in YEARS on this topic. Who knew?

He supports the filibuster because without it, the next time Repubs are the minority in the Senate, the Dems will (again) be able to get any freaky-deaky liberal activist they want through (his words) - and he contends that the Repubs are just mad because they didn't think of this tactic first. I say that of course both sides have thought of it before now, but it wasn't used prior to 2003 because most Senators believed it to be an overstepping of Senate power and authority - in essence a kind of extra-constitutional check on the power of the executive (in contrast to legislation, which - until the executive signature or a court ruling is required - is entirely a legislative function). Further, I say that since the Senate is already constructed to increase the power of the minority disproportionately so that minority rights won't be able to be completely tromped on (of course I'm speaking of small states rather than explicitly the minority party, but it can work as a booster to the minority party anyway), it's clear that the founders anticipated the possibility of minority-tromping as a sport and decided to limit it in some ways but NOT in every possible way.

In other words, when you're in the minority, it's your brief to start changing hearts and minds (either the voters' or YOUR OWN) so you can gain the majority again. If you can't do that, well, tough break, I say to him. And I add, Yes, I'd say this if the situation were reversed: if the Republican party couldn't field a strong enough team to challenge the Democratic party via convincing moderate Dems that their (the Repubs') cause was just, they ought to live with their minority status and get to work to change it through the ballot box, not through Senate rules. This is what we've been yelling at each other about for the past week. Why either of us care, I'm not sure...

There is nothing illegal or immoral happening here. Packing the courts, filibustering, changing senate rules, and even "legislating from the bench", are all perfectly legitimate exercises of the democratic process. The result will be that the moderates win - which is as intended.

Uh-oh, Jane criticized Democrats without including a Satan-is-a-Republican counterpoint. I assume this means AI is just one trackback link away from attracting a horde of sanctimonious twits issuing the staple Gregorian chants of "Closet Republican" and "We're Telling You This For Your Own Good Because You Have Gone Too Far."

"The fact is that Republicans are going to shove conservative judges down liberal throats because they can, not because there is some cosmic principle of justice involved."
That's positing a false (idealist) dichotomy between the pursuit of power and upholding principle. From an objective standpoint, all political behavior involves some of both. From a subjective standpoint, promoting one's own side's ideology is itself a matter of principle.

Uh-oh, Jane criticized Democrats without including a Satan-is-a-Republican counterpoint

Um, What else is new?

Yup, there's one now.

Jamie said: "I say that of course both sides have thought of it before now, but it wasn't used prior to 2003 because most Senators believed it to be an overstepping of Senate power and authority - in essence a kind of extra-constitutional check on the power of the executive (in contrast to legislation, which - until the executive signature or a court ruling is required - is entirely a legislative function).". Unfortunately for her argument she's completely wrong. The reason it wasn't used before 2003 is because there were other ways for a minority to bottle up a nomination in committee, ways which God's Own Party used over sixty times during the Clinton Administration. Then when they became the majority and wanted to be guaranteed to get their way all of the time they changed those committee rules so the Democrats couldn't use them. THAT'S why you see the filibuster being used now. It's the only option that was left to the minority.

In response to the red herring about Republicans having done the same to Clinton's nominees... Recall that Republicans were in the majority. It's not that the President's prerogatives ought to be always rubber-stamped by the Senate, but rather the PEOPLE's prerogatives (i.e. they elected a Republican Senate). The situation is not comparable here.

Thanks, Yevgeny... The very point I was trying to make to my husband. A majority is - a majority. The minority has rights, but one of those rights ought not to be to frustrate the will of the majority - that right belongs to the majority, for the most part. One day the Republican party will again be in a minority in the Senate and the President will be a Democrat, and that President, that Senate, and the people who elected Democrats to a majority will be able to frustrate the will of the Republican minority. So it goes. So I see it. Though it appears to be a moot point now, for the moment.

Yvgevny and Jamie,
Give me a break! Sure there's something of a difference with the GOP being in the majority but to say that the siutations aren't comparable is laughable. In both cases, you have judges, most of whom would probably been confirmed if allowed an up or down vote, being held up by parliamentary procedure. Do yo seriously mean to suggest the GOP senate would have voted down 60 judicial nominations in the 6 years that they held the the senate while Clinton was president? History shows that very probably would not have been the case.

Jim S wrote:

The reason it wasn't used before 2003 is because there were other ways for a minority to bottle up a nomination in committee, ways which God's Own Party used over sixty times during the Clinton Administration.

Which is an utter lie since Republicans did not in fact bottle up “over sixty” nominees in committee during the Clinton administration. In order to get the “over sixty” factoid, what Democrats have done in include every nominee who didn’t get voted during a session of Congress and was considered to be “returned” to the President. Most of these were then voted on during the next session of Congress but still get included as “blocked.”

Gerry Daly did an analysis on this based on the hard data from the Congressional Research service:

http://dalythoughts.com/index.php?p=2983

President Clinton nominated 22 people to the 103rd Congress to be Circuit Court justices. Three were returned, but all three were renominated and confirmed by the 104th Congress. The eventual confirmation rate for these nominees was 100%.

President Clinton nominated 17 new people to the 104th Congress to be Circuit Court justices, in addition to the three renominations. Of these 17 new nominations, 1 was withdrawn, 1 was returned and not renominated in the 105th, and one was renominated in the 105th, returned there, and then not renominated. The other 14 were eventually confirmed (although one had to wait until the 106th). The eventual confirmation rate for these new nominees was 82%.

President Clinton nominated 23 new people to the 105th Congress to be Circuit Court justices, in addition to seven who were renominations. Of the 23 new nominations, two were returned and not renominated. Two were renominated in the 106th only to be returned again and never confirmed. One was withdrawn. The other 18 were eventually confirmed. The eventual confirmation rate for these new nominees was 78%.

President Clinton nominated 28 new people to the 106th Congress to be Circuit Court justices, in addition to six renominations. 1 was withdrawn. 15 were returned and never renominated. 12 were eventually confirmed (including one who was renominated by President Bush). The eventual confirmation rate for these nominees was 43%.
In aggregate, President Clinton nominated 90 people to be Circuit Court justices during the four Congresses during his term. 66 were eventually confirmed. The eventual confirmation rate for his nominees was 73%. He had 13 nominees who were returned but eventually confirmed; 12 of those were confirmed by the subsequent Congress. Of the 20 returms that Clinton had during his first three Congresses (where he would be in term for a subsequent Congress), he renominated 16 (80%) of them. Over 80% of them were eventually confirmed, with a full three quarters confirmed in the very next Congress.

BTW: it should be pointed out while there were in fact some nominees that had holds placed on them by Senators (Jesse Helms was notorious for this but the actual number is far short of the sixty figure), the majority of cases were for other reasons specifically that then President Clinton had a habit of sending nominees at the end of the Congressional Session rather than the beginning, sent in Court of Appeals nominees who were rejected by the Advisory Board, and in an unprecedented move actually sent 9 nominees (which get included as part of the “over sixty” factoid even though 1 was actually confirmed when renominated by President bush) in January of 2001 after we had just finished a presidential election and a new president was going to come to office.

Jamie,

The Senate as an institution frustrates the will of the majority. If the Senate were meant to be run solely by majority will, then Rhode Island and Wyoming wouldn't have the same number of Senators as Texas and California.

The original idea was that the House would respond to the will of the people and that the Senate would act more deliberatively. But everytime people talk about the "will of the majority" in the Senate they should consider the very nature of the institution.

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