Centerfield

I'm afraid I can't agree with that policy position. By framing the issue as being about the "valuable Senate tradition of cautious deliberation", it accepts the Democratic argument that this is about debate. It is not. It is about how many votes are ultimately required to confirm a nomination.

Months ago, the Republicans offered a compromise, rules which would provide a sliding scale of votes needed... 60 or 65 to pass after 1 month, 55 after 2 months, a simple majority after 3 months (I forget the exact timetable, but it was something like this). This proposal would preserve the Senate tradition of cautious deliberation. The current Democratic policy is obstructionism, pure and simple. They rejected this Republican proposal out of hand. The Democrats do not seek debate, they seek control.

I voted for a Republican Senator in my state precisely because I wanted the President's judicial nominations to be confirmed. Judging by the election results, so did many other people. This should be reflected in the outcome of the confirmation votes.

Finally, I am disturbed that the Centrist Coalition, by adopting this policy, is participating in the mislabelling of the currently-filibustered nominees as "extremists". The linked policy position calls on "the moderate majority" of Americans to fight against the effort to "pack our courts with ideological extremists." This can only be taken, in current context, as a comment on the character of Priscilla Owens and all the other filibustered nominees. I think that is an unfair and erroneous conclusion.

Posted by: PatHMV at April 25, 2005 06:56 PM

Your announcement says that the filibuster provision is “particularly appropriate for judicial appointments, because it can prevent ideological judges with an extreme liberal or conservative agenda from being confirmed to lifelong terms.”

My understanding is that except for the nomination of Abe Fortus to Chief Justice, the filibuster had never been used prior to now. If that is true, if the country was able to survive for over 200 years without the need to filibuster judicial nominations, why is it essential now? Are President Bush’s candidates the most extreme any president has nominated in over 200 years? I find that hard to believe because the following filibustered nominees were rated qualified or well qualified by the ABA: Miguel Estrada (WQ), Richard Griffin(WQ/Q), Carolyn Kuhl(WQ/Q), David McKeague(WQ/Q), Priscilla Owen(WQ), Charles Pickering(WQ/Q), Henry Saad(WQ/Q). Multiple ratings indicate committee was not unanimous in its evaluation.

The Senate also approved Timothy Tymkovich to the Tenth Circuit court even though some of the ABA panel rating him thought he was not qualified. What criteria did the Democrats use to select nominees to filibuster?

Posted by: ROA at April 25, 2005 07:12 PM

I would certainly agree that the Democrats tactics deserve criticism. But when I think about a tradition of "cautious deliberation", I think of one where the system puts pressure on all parties to steer clear of their most intensely ideological options. And that has to be a system where some nominations suffer failure. Caution means you have to think you might fail if you pick someone who's too far out. The likelihood that there will be any real caution otherwise is minimal.

I guess I would also point out that being "ideologically extreme" doesn't mean you have bad character. It means you have very strong beliefs that probably make it hard for you to be impartial as a judge. You probably belong in elective politics rather than the judiciary.

What I've read about Priscilla Owens is not the least bit comforting to me. Sounds like there are pretty good reasons to think she's a true conservative activist -- finding the result that agrees with her -- rather than a more traditional conservative strict constructionist.

Posted by: William Swann at April 25, 2005 07:25 PM

William,

Have you done an in-depth analysis of each of the filibustered nominees? Where can we see it? Your blanket statements cast aspersions ("ideologically extreme" is definitely an aspersion in today's climate) on all of the filibustered nominees, so I think it would be appropriate for you to have based that on an individual examination of each of the nominees.

And if you do so and find that the nominees really aren't that extreme, then your next policy position should be to demand that the Democrats stop slandering highly qualified judges.

Posted by: PatHMV at April 25, 2005 07:38 PM

William,

Also, would a nominee having a "strong belief" that Roe v. Wade is a good decision be equally deserving of a filibuster? Or is that somehow a centrist position, or non-ideological position in your book? Or are you suggesting that major constitutional decisions such as Roe are a one-way rachet, which, once ruled upon, are sacrosanct and untamperable? If so, how would you square that with, say, the eventual overturning of the Dred Scott or Plessy v. Ferguson decisions?

By making policy-based political decisions (by, e.g., finding laws unconstitutional because some of the states and some foreign countries think they are bad), judges have entered the political realm. Constructionist judges, who limit the reach of their cases, preserve the political power where it belongs... in the political realm. But having jumped into the political arena, judges will inevitably be evaluated by political criteria. The only solution is to return judges to being judges, not super-policy makers.

Posted by: PatHMV at April 25, 2005 07:44 PM

William, If Priscilla Owen is unsuited for the court, why did the ABA rating committee give her a unanamous Well Qualified rating? Well Qualified is their highest rating.

Posted by: ROA at April 25, 2005 08:07 PM

Forgive me for commenting so many times in one thread, but this has pushed a few of my buttons.

This seems to be an extension of what Rick recently referred to as an "oppositional bias". He wants to evaluate policy positions in part based on how they will effect the current political landscape, favoring the party out of power just to keep things level. Such is the politics of compromise for compromise's sake.

Instead of being defined in opposition to one party or the other (regardless of who is in power), I think centrism should be defined through careful and impartial analysis of each individual issue. Rather than consciously trying to level the political scales one way or the other, centrists should strive to identify the best policy, regardless of whether that policy promotes the perceived power party or underdog. So far, I don't see any evidence that the Centrist Coalition has done that here.

Posted by: PatHMV at April 25, 2005 08:51 PM

Have you done an in-depth analysis of each of the filibustered nominees? Where can we see it? Your blanket statements cast aspersions ("ideologically extreme" is definitely an aspersion in today's climate) on all of the filibustered nominees, so I think it would be appropriate for you to have based that on an individual examination of each of the nominees.

My point is actually quite different from what you suggest above. To believe we should retain the judicial filibuster rule does not suggest that the Democrats are using it appropriately today, nor that they will in the forseeable future.

Every power granted to every political body is used badly at times. The president makes good and bad choices for various appointments. A minority can use the filibuster law to stymie a perfectly good law. Believing in the filibuster doesn't mean you're against the law it was used against. It means you think there should be checks and balances in the system, and that there should always be that pressure on both sides to consider the likelihood that what they do will draw opposition from 41 or more in the opposing party.

William, If Priscilla Owen is unsuited for the court, why did the ABA rating committee give her a unanamous Well Qualified rating? Well Qualified is their highest rating.

Because she practiced commercial law for 17 years, and because she served for 8 years on the Texas Supreme Court. The ABA bases their ratings on experience and professional qualifications, which she has in spades.

Look up a statistic for me. What percentage of circuit court appointees are judged "unqualified" by the ABA? Do you believe all of them are "suited" for the court? Honestly. Even the liberal ones?

Posted by: William Swann at April 25, 2005 08:52 PM

Also, would a nominee having a "strong belief" that Roe v. Wade is a good decision be equally deserving of a filibuster? Or is that somehow a centrist position, or non-ideological position in your book?

Hmmm. Interesting question. Suppose a judge were so intensely "pro-choice" that they, for example, refused to enforce a Texas law that said minors had to notify parents before getting an abortion. Their beliefs trump the law, even though the Supreme Court hasn't ruled parental notification laws unconstitutional.

I would call that liberal judicial activism, and would probably oppose elevating that person to a higher court.

There is, of course, a Texas law on parental notification. Read what Alberto Gonzalez had to say about Judge Owens' efforts to prevent the statutorily prescribed exceptions from being enforced:

"To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."

Posted by: William Swann at April 25, 2005 08:55 PM

From what I can tell, at least eight of the judges nominated during the 108th congress were rated not qualified by a minority of the ABA’s evaluation committee but were still confirmed by the Senate.

So Priscilla Owen was a Texas Supreme Court Judge for eight years and her rulings were reasonable enough for the ABA’s evaluation committee to rate her well qualified, but she is really so extreme she must be filibustered against? It’s not enough to just vote on her?

Posted by: ROA at April 25, 2005 09:03 PM

During his confirmation hearing for Attorney General Gonzales denied that he was criticizing Ms. Owen:

MR. GONZALES: Thank you for that question, Senator. Let me just say at the outset regarding Judge Owen: I served with Judge Owen on the Texas Supreme Court, and I think she did a splendid job, a superb job as a judge. I think she would make a superb judge on the 5th Circuit, and that's why her name was recommended to the president. There were a series of very contentious cases -- opinions written in connection with six cases, I think, involving four minor daughters in the year 2000 while I was on the court. It is true that the law -- the legislature made it a policy judgment that they wanted more -- they wanted parents more involved with the abortion decisions of their minor daughters. But the legislature did not make the parental rights absolute; they provided three exceptions. And most of the decisions of the court involved -- are about interpreting those exceptions, allowing a judicial bypass.

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome. But as to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended, again, through the words of the statute and the way that the judicial bypass procedure would actually operate in practice.

Posted by: ROA at April 25, 2005 09:11 PM

William,

As to your post on Judge Owens' and Alberto Gonzales, it is quite clear from a more careful reading of the opinions that Judge Gonzales was referring to the other dissenting opinions in that case, not Judge Owens', as is made clear by Powerline.com. Judge Owens did not address the issue of statuory interpretation, but called for greater deference to the trial court's findings of fact... which is exactly what many moderates (myself included) demanded (and all the appellate courts practiced) in the Schiavo case.

As to your larger point, I simply disagree that the policy position you provided on Centrist Coalition is protecting the filibuster for the sake of the filibuster. You go out of your way to criticize recent Republican actions (some of which criticisms I agree with, though not all), and your concluding paragraph begins: "The moderate majority of Americans -- and centrist senators of both parties -- need to step up and speak out against this effort to silence dissent and pack our courts with ideological extremists."

In the context of calling for preservation of the filibuster (without simultaneously calling on the Democrats to be more reasonable in their name-calling), you are in fact saying that the current filibustered nominees are part and parcel of "this effort to silence dissent and pack our courts with ideological extremists."

If these judges were activists of the type DeLay calls for in his worst tirades, then I would be opposed to them... and I would call on all Republicans, moderate or otherwise, to reject them. But neither you nor anybody else has demonstrated that it is the case.

Posted by: PatHMV at April 25, 2005 09:11 PM

I'm conflicted. I don't want to see the filibuster rule go away, as I think it serves a very valuable purpose. I also think that obvious misuse of the rule is self-correcting, that it affects the obstructing party at the ballot box. Recent history tends to support that.

On the other hand, I hear and understand the objections of Pat and ROA. In plain words, the press release beats on the GOP without acknowledging that the anti-filibuster faction has some valid points about the partisan abuse of the rule by the Democrats, or mentioning the extremist rhetoric and actions of the pro-filibuster faction. The judges are for the most part not being obstructed for reasons of incompetence, but for reasons of politics and ideology. The press release accuses the GOP of trying to "silence dissent and pack our courts with ideological extremists." Frankly, I haven't noticed that anyone has been able to shut up the Senate Dems, or that the nominees are "ideological extremists" other than in the rhetoric of the opposition. They appear well-qualified. Their major "flaws" seem to be that some of their judicial decisions go strongly against Dem party orthodoxy.

Worse yet (for me) I have no excuse but the busy-ness of life in not having made these objections before the press release came out. The mails are in my box, and I've been travelling much of the last two weeks and have put off reading them. I'm guilty of not paying attention, and not putting in my two cent's worth before the release. And for that I have no one but myself to blame.

Posted by: Tully at April 25, 2005 09:19 PM

I've got something up. Shabbas and Pesach had me out all weekend.

Posted by: Daniel at April 25, 2005 09:23 PM

I don’t want the filibuster to go away either, but to break 200 years of tradition to oppose judges that have been unanimously considered qualified by the ABA seems extreme to me. I consider that to be the true nuclear option.

Posted by: ROA at April 25, 2005 09:51 PM

Tully,

I agree it would be better to preserve the filibuster, all things being equal (which of course they are not right now). Months ago, the Republicans proposed a compromise whereby it would take something like 65 or 66 votes to invoke cloture after 1 month of debate on a nominee, 55 or so after 2 months, and a simple majority after 3 months. (Don't hold me to the specifics, but you get the idea.)

The Democrats should have agreed to that proposal at the time, and we would have avoided this current crisis. It's a good compromise, and would allow the majority to ultimately get their way, but would give the minority opposition party ample time to make their points and try to sway the waverers of the majority party.

A similar scheme, of course, was implemented by no less an authority than our last Pope for the new rules for the conclave of cardinals.

Posted by: PatHMV at April 25, 2005 09:52 PM

I guess I missed any discussion of the Centrist Coalition position statement. I do have some comments. I hope they are not just unwanted interference.
First, I question the intrinsic logic of your position statement. Not the logic behind it, the logic of the wording of the statement itself.
You state that the purpose of Senate deliberation is that: “…it can prevent ideological judges with an extreme liberal or conservative agenda from being confirmed to lifelong terms.” Implicit in this statement is that lifelong terms for such judges are a bad thing.
You state that: “The judiciary becomes more like the other two branches of government -- more nakedly partisan, and less objectively deliberative.” This also is a bad thing in the context of your remarks.
Finally, you state: “Especially in these polarized political times, we need to our courts to be independent and to retain the sense of balance upon which justice is based.”
Then, inexplicably, you equate impeachment of judges with extremism and state: “… fundamental forms of judicial interference, such as impeaching judges.”
If letting these nakedly partisan judges in the front door is bad, then booting them out the back door (after a fair trial, which we must assume impeachment provides) is good. I submit that your statement about interference is therefore not logical.
Next I would disagree with your position.
If “ideological judges with an extreme liberal … agenda [with]… lifelong terms” are a bad thing and if judges being “nakedly partisan…” is a bad thing, then why is impeaching such judges “judicial interference”? We impeach presidents, why not judges? Read any good decisions from the 9th Circuit lately? Yes, extremism stalks our country today but it was ignited by pre-existing extremism of a different sort.
Stating a position that allows one form of extremism to carry on unabated while shutting down the other is not really centrism, is it? Or rather, it is centrism at its worst, coming in to preserve a status quo that needs to be altered to its prior state before being stabilized. Instead of implicitly supporting the liberal movement of the day by calling for a cease fire with the lines drawn where they are now, why not call for the lines to be drawn where your own logic says they should be? Now that would be centrist leadership!

Posted by: Notherbob2 at April 25, 2005 10:43 PM

i don't like the idea that the nominees can't come up for a simple vote. But the filibuster, as odiously as it has been applied in the past (i.e. the civil rights bills), has its historical roll in the Senate. IMHO that rule should not go away in spite of how it is or is not being misused at this point in time. In some sense the specifics of the "to be filibustered" nominees is irrelevant.

Posted by: c3 at April 26, 2005 12:44 AM

Having said that I too struggle with some of the wording of the statement.

Posted by: c3 at April 26, 2005 12:45 AM

This press release claims that filibusters are a tradition, and especially appropriate for judicial appointments. That's somewhat misleading.

What is missing from your document, is any acknowledgement that the current Democrat filibusters against Appellate court judges are unprecedented. There is no tradition of filibusters against appellate court judges. If longstanding filibusters are so appropriate for appellate court judges, then why aren't there prior examples of it being done?

This press release suggests that stopping filibusters against appellate court judges would go against Senate tradition. The reality is the opposite. The Democrat appellate filibusters that are unprecedented, and stopping them would actually return the Senate to its traditions of giving appellate judges a vote.

If you like the idea of permanent filibusters against appellate judges, that's fine, but at least acknowledge it is something quite new for judges at this level.

Posted by: Susan at April 26, 2005 02:34 AM

Well written... I strongly agree. I think you can go on and on about the text and what could be different, but I think the statement captures why most middle of the roaders are against the nuclear option.

RINO
posted about it, as did I. If you agree with the position and have your own blog, please link it the position statement on the Filibuster so we can spread the CC message to as many as possible.

Posted by: Mathew at April 26, 2005 06:52 AM

As to your post on Judge Owens' and Alberto Gonzales, it is quite clear from a more careful reading of the opinions that Judge Gonzales was referring to the other dissenting opinions in that case, not Judge Owens', as is made clear by Powerline.com. Judge Owens did not address the issue of statuory interpretation, but called for greater deference to the trial court's findings of fact... which is exactly what many moderates (myself included) demanded (and all the appellate courts practiced) in the Schiavo case.

I think we have an interesting factual question, here. Powerline says that Judge Owen's dissent was based only on deference to findings of fact in the lower court. On the other hand, there is a review of this case and two others involving judicial bypass on the People for the American Way site.

The Powerline analysis suggests she's the good constructionist conservative judge. The PFAW analysis makes her an activist. Which is closer to the truth?

As to your larger point, I simply disagree that the policy position you provided on Centrist Coalition is protecting the filibuster for the sake of the filibuster. You go out of your way to criticize recent Republican actions (some of which criticisms I agree with, though not all), and your concluding paragraph begins: "The moderate majority of Americans -- and centrist senators of both parties -- need to step up and speak out against this effort to silence dissent and pack our courts with ideological extremists."

Good point. The policy does criticize the Republicans without also mentioning problems with what the Democrats are doing. That may not be fair.

It does also argue for the filibuster "for the sake of the filibuster", though. The first two points we make are focused on that broader issue. It's the third point when we get into criticizing the Republican leadership.

Posted by: William Swann at April 26, 2005 08:42 AM

I think I'm pretty much with Susan and Pat here. The statement obscures the point that Democrats are ploughing new ground here in the way they are using the filibuster. The GOPs threats are a response to new tactics that break with tradition. The statement should also include language urging the democracts to affirm the previous traditional stasis point of allowing votes on appointees in virtually all instances.

I think the fillibuster should be preserved, but I also think that if one happens, everything should grind to a complete halt and the fillibusterers should be required to carry it out physically, as in the movies, until someone blinks.

I have always had a hard time stomaching the sorts of parliamentary maneuvers that subvert democracy to the will of some small group of petulant sore losers. I recall how Jesse Helms single-handedly stopped Bill Weld from getting voted on for an ambassadorship. That sort of stuff is a disgrace, IMO. I believe that in all but the most extraordinary circumstances, a nominated appointee deserves a vote. The losing minority party should in nearly all instances have the grace to accept that when thety lose the election, the winner gets the appointment spoils.

i could see if 1 or 2 people got strongly opposed over the course of several years, but when you are growing a long list of people whose appointments are stalled, you're subverting the process and failing to acknowledge that you've lost the game.

I could also see appointing judges for, say, 8-year or 12-year terms instead of lifetime terms.

Posted by: bk at April 26, 2005 08:44 AM

From what I can tell, at least eight of the judges nominated during the 108th congress were rated not qualified by a minority of the ABA’s evaluation committee but were still confirmed by the Senate.

That's an interesting parsing of my question. How many of them were judged not qualified by a final decision of the ABA -- e.g., by a majority?

Those ratings tend to reflect experience and professional qualifications, not judicial philosophy. There are plenty of activist liberal judges who get well qualified ratings from the ABA. I questioned your earlier suggestion that the ABA rating means a judge is "suited" for the court. I suspect you wouldn't come to a similar conclusion about the activist liberals.

So Priscilla Owen was a Texas Supreme Court Judge for eight years and her rulings were reasonable enough for the ABA’s evaluation committee to rate her well qualified, but she is really so extreme she must be filibustered against? It’s not enough to just vote on her?

Maybe it is enough to vote on her. But I think the mechanisms that have been used to deny an up or down vote, such as judicial holds and the filibuster, serve a larger purpose. They put pressure on the president not to nominate extreme judges. Whether those mechanisms are used appropriately in all cases, their mere existence is a moderating influence that probably makes the judiciary more impartial. Throwing them out is a little like throwing the baby out with the bathwater.

Posted by: William Swann at April 26, 2005 08:53 AM

The nuclear option seems like short-term thinking to me on the part of those Republicans that back it. Do you guys think the shoe will never be on the other foot? If you think you're oppressed by those damned liberal judges now, do you think you'd be happier if LBJ's buddy, Abe Fortas, who fell to GOP filibuster, had made it onto the Supreme Court? Or if (D) majorities had refused to honor the vast numbers of judicial holds placed by Republicans over the years?

Posted by: Jon Kay at April 26, 2005 09:30 AM

Months ago, the Republicans proposed a compromise whereby it would take something like 65 or 66 votes to invoke cloture after 1 month of debate on a nominee, 55 or so after 2 months, and a simple majority after 3 months. (Don't hold me to the specifics, but you get the idea.)

The Democrats should have agreed to that proposal at the time, and we would have avoided this current crisis. It's a good compromise, and would allow the majority to ultimately get their way, but would give the minority opposition party ample time to make their points and try to sway the waverers of the majority party.

That may be closer to capitulation than a compromise. I suspect either side is willing to wait three months to get the judges they want. Currently, they're willing to nominate and renominate them over a period of years. Clinton did it, and Bush is doing the same.

I would also ask the broader question. If we eliminate the current filibuster rule and replace it with something that calls for majority rule after a period of months, this will almost certainly have an impact on who gets nominated in the first place. Presidents who can be sure they can get their person through will pick different judges than presidents who have to worry about opposition. Under which of those scenarios do we end up with a judiciary that is more impartial?

Finally, I'd like to raise a factual question. I'm fairly sure that the Democrats use of the filibuster is unprecedented, and, more broadly, that they've used blocking tactics (for the appellate court, at least) more frequently than the historical norm.

I've also heard, however, that the traditional ways of blocking judges -- the ability to put holds on nominations, for example -- have been limited via rule changes made by the Republican majority.

My question is whether that's the case. Is it possible that some use of the filibuster is occuring because the more usual methods have been set aside via rule changes?

Posted by: William Swann at April 26, 2005 09:45 AM

FYI -- There is word about a possible compromise this morning. We're not privy to all the details, of course, but this sounds like it may be a genuine compromise. What do you think?

Posted by: William Swann at April 26, 2005 09:51 AM

"How many nominees were judged not qualified by a majority of the evaluating committee?" None, which seems reasonable. Hopefully no one who is felt to be unqualified by a majority of the ABA’s evaluating committee would be nominated.

"But I think the mechanisms that have been used to deny an up or down vote, such as judicial holds and the filibuster, serve a larger purpose. They put pressure on the president not to nominate extreme judges"

I do not think Miguel Estrada and Charles Pickering were extremists. I think Estrada was filibustered because he was Hispanic. And everything I read about Pickering indicated he was a very reasonable man who had gone out of his way to facilitate integration in the Deep South when it was physically dangerous to do so.

Posted by: ROA at April 26, 2005 10:06 AM

I do not think Miguel Estrada and Charles Pickering were extremists. I think Estrada was filibustered because he was Hispanic. And everything I read about Pickering indicated he was a very reasonable man who had gone out of his way to facilitate integration in the Deep South when it was physically dangerous to do so.

I don't actually have an opinion as to whether Estrada or Pickering were appropriate. But lets assume you're right. We then have a choice between (a) a system that rejects some good judges along with some bad ones, or (b) a system that makes it routine for a president who's party has a Senate majority to get all his nominees.

You can argue that option B is appropriate based on majority rule principles. But you can't argue that the judiciary is more impartial, in that scenario. Blocking tactics like the filibuster tend to focus on the more "far out" nominees, even if they don't always do so. The resulting judiciary is less advocacy-oriented.

I think retaining these mechanisms is more important for the judiciary than it is for legislation or presidential cabinet appointments. The judiciary is supposed to be impartial, while cabinet members are supposed to implement the president's policies and legislation is supposed to represent the views of the elected body.

Judges are also confirmed for lifetime appointments. There's no "correcting factor" of a new administration or a new Congress coming in. We need to be more cautious about them.

Posted by: William Swann at April 26, 2005 10:25 AM

"I don’t want the filibuster to go away either, but to break 200 years of tradition to oppose judges that have been unanimously considered qualified by the ABA seems extreme to me."

Hasn't the ABA standard only been used since the 1950s?

Posted by: tim at April 26, 2005 10:30 AM

The whole reason why we are seeing the fillibuster abused today (and I do stand by the catagorization that it IS being abused)is because it no longer carries a real price tag for using it. That is the result of another rules change that took place in the Senate a number of years ago.

It used to be that the Senate could only consider 1 piece of business at a time and something could not be set aside until it had been resolved. Thus if a party was conducting a fillibuster NO NEW BUSINESS OF ANY KIND could be undertaken. While this caused government gridlock, that wasn't neccesarly a bad thing.... since it meant that there was a real price tag for using the fillibuster option.... thus it was reserved for things that were really important and for which there was real public support. If a Senator had to explain to his constituants why thier Highway Appropriations Bill wasn't being considered because of it, you can be damn sure he would have a rock solid reason for fillibustering.

This all changed when the Senate approved a rules change (under Mike Mansfield and Robert Byrd) that allowed stalled issues to be temporarly shelved so that new business could be considered. While this (seemingly sensible) measure removed gridlock, it had the unintended consequence of drasticly reducing the price tag for fillibusters..... which explains why you are seeing them used frivolously in recent years.

The time honored tradition of fillibustering is NOT the fillibuster you are seeing used today. THAT tradition was killed when the rules were changed to allow new issues to be considered. I'm not sure if the "nuclear option" is the correct response to this.... but SOMETHING needs to be done to RESTORE that balance... and reinstitute a real price for fillibustering.

You can read about this in one of Geoff Metclafs articles on the web.

Posted by: cengel at April 26, 2005 10:53 AM

The ABA standard may have only been used for 50 years, but the tradition of not filibustering judges apparently goes back 200 years.

Posted by: ROA at April 26, 2005 10:53 AM

William Swann - I have some problems with a number of your statements:

"Blocking tactics like the filibuster tend to focus on the more "far out" nominees, even if they don't always do so. The resulting judiciary is less advocacy-oriented."

Since the current blocking tactics of the Democrats are unprecedented (the Fortas filibuster was bipartisan, that is, the vote against cloture was bipartisan), you have no evidence that this is so. Without such evidence, please don't make such assertions. It's misleading.

"Judges are also confirmed for lifetime appointments. There's no "correcting factor" of a new administration or a new Congress coming in. We need to be more cautious about them."

Isn't there an implication here that the voters (who put in a president and Senate of the same party) don't know this? Perhaps there should be a Council of Wise Elders to guide the lumpenmensch.

What worries me is that, based on your "Hmm...interesting question." responses to some of the posts here, maybe your press release wasn't terribly well-thought-out.

If that's the case, then perhaps your goal is to stop the Republicans from exercising the "nuclear option." Without the context of Democrats' actions that precipitated the discussion (which you admit is missing), then isn't the press release, in fact, a pro-Democrat and anti-centrist document?

Posted by: Literally Retarded at April 26, 2005 10:56 AM

This is a difficult issue because it's wrong for the Dems to indefinitely hold up judicial nominations with a parliamentary move, but it's also wrong to end the filibuster. Once one party ends the filibuster for one type of legislation, what's to stop them from ending it on all other types of debate?

The filibuster does not exist to indefinitely hold up Senate business. It exists as a kind of game of legislative chicken—each side trying to wear out the other.

If the Republicans really want these nominees to come up for a vote, they should bring them to the floor and not let any other business come up until there is a vote. And if the Democrats are really committed to blocking the nominees, they should be prepared to speak for as along as it takes to wear the Republicans out.

That is the intent of the filibuster rule—it is disingenuous to pretend that it is there to give the minority a permanent veto. Yes, these judges are no friends to liberal ideology, but there is no evidence that any of them would subvert the law or are so horribly unqualified as to deserve extraordinary measures to keep them off the bench.

The Centrist Coalition is right to call out the Republicans for their extremist language on this issue. And the CC is right to support the preservation of the filibuster. But I personally prefer a position that calls for a real filibuster as the best solution. Right now, the Centrist Coalition’s position gives the Dems too big a pass on the issue.

Posted by: Alan at April 26, 2005 11:14 AM

"Blocking tactics like the filibuster tend to focus on the more "far out" nominees, even if they don't always do so. The resulting judiciary is less advocacy-oriented."

Since the current blocking tactics of the Democrats are unprecedented (the Fortas filibuster was bipartisan, that is, the vote against cloture was bipartisan), you have no evidence that this is so. Without such evidence, please don't make such assertions. It's misleading.

Well, I think you skip over the fact that I refer to "blocking tactics" in general, not just the filibuster rule. Do you think it's a controversial contention to suggest that judges with more extreme records are blocked more frequently than the others? It's a whole lot easier to justify denying an up or down vote if there's something in the record that makes the judge seem outside the mainstream.

Furthermore, when a president makes his choices, it's very likely that a controversial record will give him pause -- and more likely if there are blocking tactics available to the opposition. Do you doubt that?

What worries me is that, based on your "Hmm...interesting question." responses to some of the posts here, maybe your press release wasn't terribly well-thought-out.

If that's the case, then perhaps your goal is to stop the Republicans from exercising the "nuclear option." Without the context of Democrats' actions that precipitated the discussion (which you admit is missing), then isn't the press release, in fact, a pro-Democrat and anti-centrist document?

My goal is, in fact, to stop the Republicans from exercising the "nuclear option". I should point out that there are 9 people on the Centrist Coalition's policy committee, and support for this policy was unanimous. So you can fairly say it's our goal as an organization to stop this rule change.

Some of the criticisms above of our lack of comment on Democrat tactics are valid. But the basic conclusion is right, and also seems to reflect most centrist views that I'm aware of (and, more broadly, the views of most Americans as reflected in public opinion polls).

Most Americans, and most centrists, seem to oppose ending the filibuster rule. You can fairly remark that most Americans are also uncomfortable with Democrat tactics on judicial nominations, and that we failed to address that in our statement.

Posted by: William Swann at April 26, 2005 11:16 AM

William – I think your assumption is that if the filibuster is eliminated every Senator of the President’s party will vote for every candidate he nominates, regardless of how unqualified he or she is. I think that is a mistaken assumption. I am sure that without the filibuster a President will get more nominees confirmed, but if truly bad people are nominated it should be possible to reject them.

As far as I know there are no limits to written questions that nominees are required to answer so any group with legitimate concerns should be able to get the nominees position on the record for the full Senate to consider. The web page containing the Judicial Filibuster Policy includes a list of six Senators to contact over concerns about changing the policy. If these Senators are reasonable enough to thoroughly evaluate the consequences of rules changes, shouldn’t they also be reasonable enough to properly evaluate judicial nominees?

Posted by: ROA at April 26, 2005 11:38 AM

In Federalist 76 ("The Appointing Power of the Executive") Alexander Hamilton was fairly clear on the reasoning behind the "advice and consent" clause.

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

Some would have us believe that the filibuster is as old as the Senate itself. Not quite--it was an oversight in the writing of Senate rules in 1806 by Aaron Burr that brought in the filibuster. The loophole did not see use until 1837, and by 1841 attempts to reform the filibuster began. These attempts finally resulted in the cloture rule to break filibusters in 1917, with a 2/3 majority needed to invoke. Cloture was adopted as the alternative to the Constitutional (aka "nuclear") option. Both filibuster and cloture applied only to legislative filibusters until 1949.

Senate infighting led to further modification of the cloture rule in 1959 (to 2/3 of a quorom) in a compromise engineered by Senator LBJ, who wanted to avoid the "nuclear" option. The partisan infighting continued as many liberal Dems worked hard to reduce cloture to a 3/5 vote of a quorom, while Republicans and Southern Dems worked to invoke the "nuclear" option as the rule. Three times in 1975 the Senate endorsed the "nuclear" option, but finally Robert Byrd led the drive to amend the rule to 3/5 of the entire Senate in 1975, a compromise that pleased few but managed to pass. And that's where we stand.

So you can see that the "nuclear" option is hardly new, nor is the debate over it. You can also see that the cloture rule is hardly set in stone and has undergone revision several times since originating in 1917. If you really want to go over all the details, this article (pdf warning) has more detail than you'll probably ever want or need.

Filibustering of nominations is a relatively new phenomona, only became technically possible in 1949, and was first used against the Fortas nomination in 1968. It was used only twice before 1980 (Fortas and Rehnquist). It grew during the Reagan years, saw some hefty use during the first two years of the Clinton admin, and hey! Here we are!

This has been your moment in history. I don't care much for the Constitutional option, but let's drop the rhetoric about how it's an "extremist" position. It's not. And let's drop the rhetoric about the Senate rules on cloture and the filibuster of nominations having been set in stone from the dawn of time. They're not. The current trend to filibuster nominees in bulk is indeed a recent thing, not a time-honored tradition. Both sides have played that game.

I prefer the current cloture rule. But I also believe that filibusters should actually shut down business, and that those who drag the Senate to a halt had better have a damn good reason. Sheer stubborn partisanship in doing so will pay its own reward, delivered by the voters. That's how minorities are made. And I don't see any reason to hurry that evolution through the Constitutional option.

Posted by: Tully at April 26, 2005 11:45 AM

William,

It's perfectly valid if this policy position is the goal of your organization. As an organization you guys have the option to set any policy positions you like. But I think the rather one sided press release you guys issued is going to seriously erode your support among people who have centrist sympathies and may even be opposed to the "nuclear option" but have serious problems with the way the Democrats have been utilizing the fillibuster.

I always considered myself a conservative rather then a centrist.... and generaly found myself to the right of the majority of your posters here on most issues. However I had a considerable amount of sympathy/respect for your positions. That respect is lessened by the content of this press release. I didn't expect you guys to produce something that looks like it could have been taken verbatim from MoveOn.org

Posted by: cengel at April 26, 2005 11:49 AM

I support the position. I don't support all the stated reasoning. I condemn the rhetoric.

BUT...I would note that a political coalition by definition agrees to abide by majoritarian rule in establishing a common platform. Members agree to support the coalition, even when differing on some specifics of the overall platform. Big Tent, United Front.

That's how strength of numbers is achieved in politics. Single-issue groups gain influence by focus, broader groups gain influence by size and solidarity.

Posted by: Tully at April 26, 2005 11:57 AM

William,

The Republicans have certainly delayed their share of judicial nominations before, but the difference then was that they controlled a majority of the Senate. They were wrong the times they refused to even schedule committee hearings for the nominees, but I don't recall that they did it that very often.

This filibustering is happening because for the first time in a very long time, one party has controls, by a fairly substantial majority, the Presidency and both houses of Congress. I, for one, think part of the reason for that is the Republican campaign promises to appoint constructionist or textualist judges. That's was a prime motivating factor for me in electing Louisiana's first Republican Senator since Reconstruction.

As for the possible compromise, I don't think much of it, as a Republican at least. From what I've read of it, it would move 2 of the 10 forward, and without any commitment from Democrats to bring all nominees to a floor vote. There is very little in the deal for Republicans, I think. The reason the Democrats are looking to compromise is because they realize that filibustering Owens will not win them any points with the public. The "compromise" will not help resolve any future Supreme Court battles.

On another point, many have argued that if the majority can't win a few members of the minority to jump ship for a particular nominee, that nominee must not be all that good. But you could just as easily make the flip argument... if the minority can't persuade 4 or 5 of the majority to vote against the nominee, that nominee must not be that bad, that extremist. A simple majority is a much more consistent position. There's no real reason to pick 60 votes over 55 or 65 to end a filibuster. It's pretty arbitrary.

I agree with your general point that the availability of the filibuster has somewhat of a moderating influence on presidential nominees, and in general that's a good concept. But as another poster pointed out, some of the most radical liberal rulings have already been made, usurping significant power from the hands of our elected representatives. Appointing judges who oppose Roe v. Wade is not "radical", unless you adopt the position that some court rulings are a one-way street; having made a political ruling under cover of the "living" constitution, it should never be changed.

The Democrats have yet to convince me that these nominees are particularly radical. So to me, it is their improper use of the filibuster which is causing this crisis which risks undermining the occasionally beneficial tool of the filibuster (which as I hope you know by now has been viciously opposed by Democrats in the past).

And to chime in on ROA's point, the reason the Democrats are opposing most of these nominees is not because they are radical conservatives, it is because they are African-American or Hispanic conservatives. The Democrats don't want Miguel Estrada positioned to become a Supreme Court Justice, because they would be hard-pressed to vote against such a well-qualified judge to become the first Hispanic Justice. Take a look at these memos to see exactly what the Democrats are really thinking about the nominees. (On Estrada, see page 13, where they say that Estrada is "especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court nominee.") There's nothing principled about their opposition... it's purely a matter of politics. And if that's all it is, then I say the Republicans have the political muscle right now, so I'm fine with them using it.

Finally, elections matter, and they should have consequences. The American people knowingly gave the Presidency and a substantial majority of the Senate to the Republican party. That doesn't mean they should railroad everthing through, but

Posted by: PatHMV at April 26, 2005 12:38 PM

One more (much shorter) point.

Like the anonymous holds that have largely (finally) gone by the way side, as currently practiced, the filibuster shields individual Senators from the electoral consequences of their actions. Individual Senators can go home and blame the delay on the other side or, at worse, on the bosses in their own party. They're not on record supporting or opposing particular nominees. That makes it harder for the voters to make intelligent, informed decisions about whether or not to vote for that Senator for reelection. If you just have a vote, that lets everybody know where everbody else stands, and the democratic process can react accordingly.

Posted by: PatHMV at April 26, 2005 12:47 PM

Can the move to end the filibuster be blocked with a filibuster?

Posted by: WHQ at April 26, 2005 01:03 PM

I am opposed to doing away with the filibuster and I am opposed to the far right agenda, but if this first policy statement, the statement itself and the context in which it has been presented, is any indication of what the Centrist Coalition is going to be about, then it deserves condemnation. What this country doesn’t need is a liberal fellow-traveler of the Democratic Party that can be cited as a neutral voice on issues dividing the country, when in fact it is a mouthpiece for liberal causes. Obviously, there is not a center-right voice anywhere near the group that drafted and published this policy statement. Had there been, it could not have been published in its present form and become the Democratic propaganda gold mine it has become.

Posted by: Notherbob2 at April 26, 2005 01:50 PM

The Republicans have certainly delayed their share of judicial nominations before, but the difference then was that they controlled a majority of the Senate. They were wrong the times they refused to even schedule committee hearings for the nominees, but I don't recall that they did it that very often.

The power of the hold was used a fair amount during the Clinton years, wasn't it? And that's less democratic than the filibuster. One or two senators being able to hold up a nomination anonymously is more egregious than 41 senators doing it on the record.

The Democrats have yet to convince me that these nominees are particularly radical. So to me, it is their improper use of the filibuster which is causing this crisis which risks undermining the occasionally beneficial tool of the filibuster (which as I hope you know by now has been viciously opposed by Democrats in the past).

You provided a link, earlier, to the Powerline analysis that says Judge Owen is in the mainstream of conservative thought. I provided a link to the PFAW report that says the opposite. Does anyone know of an analysis, anywhere, that isn't tainted by ideological preconceptions?

I'm not sure Centrists.org or the New America Foundation (or any of the other centrist think tanks) deals with judicial confirmations.

Here are a few stats from you, drawn from the discussion at the Daily Thoughts blog:

Bush has nominated 52 judges to the appellate court and gotten 34 confirmed, a rate of 65%. Clinton got 66 out of 90 confirmed, for a 73% rate.

If we accept the above figure for Bush (and I've seen it disputed), there is a significant disparity, and it's more significant given that Clinton had a Republican congress for most of his tenure.

I'm not sure I'd call the disparity massive, though.

It's also somewhat lessened by the record on District Court appointments, which aren't as important as the appellate court, but are still pretty significant. Bush got 172 out of 179 of his District Court appointments -- a whopping 96%, compared to Clinton's 87% and Bush Sr's 79%.

Posted by: William Swann at April 26, 2005 02:01 PM

Bush has nominated 52 judges to the appellate court and gotten 34 confirmed, a rate of 65%. Clinton got 66 out of 90 confirmed, for a 73% rate.

If we accept the above figure for Bush (and I've seen it disputed), there is a significant disparity, and it's more significant given that Clinton had a Republican congress for most of his tenure.

I wouldn't call 8% a significant disparity in this instances. I'd call these figures substantially similar. Bush would have needed to get 4 more guys confirmed to equal Clinton. But beyond that, to grant these stats meaning one must assume that all of the nominees were equal: that Clinton appointed judges just as liberal as Bush's appointees were conservative. Since this is pretty difficult to measure, those stats are probably meaningless. I won't even bother arguing it one way or the other, as we'd all craft our impressions based on our own biases. The liberala would say that Clinton's nominees didn't seem that liberal, and the conservatives would maintain that Bush's nominees aren't that conservative. Zzzzzzzz.

Posted by: bk at April 26, 2005 02:36 PM

The courtesy of "holds" on judicial nominees isn't going away, and isn't in question. In any case, the "hold" is much more limited in applicability than the filibuster, since it can only be effectively used by a Senator from the nominee's home state. And not one Senator wants to give up that privilege.

The filibustering of Fortas was a bipartisan affair. While liberal revisionists like to blame it entirely on Republicans, it was actually a mix of anti-Warrenite Southern Democrats and Republicans who led the charge, fearing that elevating Fortas to Chief Justice would expand and continue the Warren court's civil rights activism. Fortas, a close crony of LBJ, withdrew when improprieties came to light and it became obvious that he would not pass a simple majority vote for confirmation. The filibuster of Rehnquist that followed was largely in retaliation for Rehnquist's role in the Fortas filibuster. But Rehnquist had the votes and the Dems couldn't maintain the filibuster under the rules of the time.

After that, things calmed down for a decade until Ronald Reagan came to town, and the Dems revived the practice. Democrats filibustered several Reagan and GHWB nominees, thereby kicking off the "tradition" of regular usage of the filibuster for non-Supreme Court nominations, extending it to other and lesser areas nominations.

Tit-for-tat time....Republicans filibustered several of Clinton's nominees in '93 and '94, though I don't have a breakdown handy of which were for what. For obvious reasons the GOP filibuster usage declined rapidly after the '94 elections.

And now, here we are again.

Posted by: Tully at April 26, 2005 02:53 PM

In today's Washington Post:

http://www.washingtonpost.com/wp-dyn/content/article/2004/10/26/AR2005032201677.html

By a nearly 2 to 1 margin Americans disapprove of the move to end the filibuster.

Posted by: tim at April 26, 2005 03:18 PM

Better go read the wording on the poll questions...it's a good example fo phrasing questions to get a predetermined result. As such, it really doesn't mean much except as propaganda fodder.

Posted by: Tully at April 26, 2005 03:35 PM

Tully:

Please enlighten me. I read the questions and didn't feel they were leading or misleading. I tried to copy them but the pdf format wouldn't allow it.

Posted by: tim at April 26, 2005 03:44 PM

The courtesy of "holds" on judicial nominees isn't going away, and isn't in question. In any case, the "hold" is much more limited in applicability than the filibuster, since it can only be effectively used by a Senator from the nominee's home state. And not one Senator wants to give up that privilege.

I've been looking for a clear explanation of the "blue slip" system and it's history. I've found several, but all from sources that may be themselves partisan. There's a detailed history in Kevin Drum's op-ed piece for the Washington Post, but it might reflect the Democratic version of events.

I did find this article on Fox News that confirms some of Drum's timeline.

Posted by: William Swann at April 26, 2005 04:06 PM

Among other things, the word "filibuster" isn't used once, nor is the process by which they're being blocked mentioned or detailed. The questions are ambiguous. Combined with the skewed demogaphics of the poll, this means that the poll really doesn't tell us very much.

Speaking of those demographics, you can see the selection bias problem clearly at work here. Almost as bad as the LA Times' regular pointless polls. The polled sample came out as 35% Dem and 28% Republican, which likely indicates that they hit an urban sample and not a nationally representative one. Correct figures for a national sample, as repeatedly confirmed throughout last year, would have GOP/Dem at about 34/34. So either people don't currently want to ID as GOP (even if they are) and the sample is good, or the sample is bad and the results therefore skewed.

Like the LA Times poll last year that had Kerry winning by 14%.

Posted by: Tully at April 26, 2005 04:07 PM

Be darned, William, I'm behind the times on "holds." I want 'em back.

Posted by: Tully at April 26, 2005 04:10 PM

Yep. There's also an AP article about the change from 2003.

Posted by: William Swann at April 26, 2005 04:14 PM

I guess I take the true centrist position here. If Bush really wants all his nominees then he needs to put on his Reagan hat and have a royal rumble in Washington. With that said I do think the left is anti-Christian. I’m not religious but I understand that a large portion of the judges must be to represent the true American demographics. Will the left ever learn that the harder they fight this the more power goes to the other extreme?

Posted by: norgeman at April 26, 2005 04:32 PM

I still want to know if the move to end the filibuster can be blocked by a filibuster. Can the Dems force the rule change to require 60 votes by filibustering? It's a cute question, I know, but I really do want an answer if someone were willing and able to provide one.

Posted by: WHQ at April 26, 2005 04:52 PM

I blame it on my kids, William. Children cause brain damage and memory loss. If you have more than one, you KNOW you've got memory loss....

Posted by: Tully at April 26, 2005 04:53 PM

No doubt someone with better knowledge will correct me if I'm wrong...I don't think so, WHQ, because it's a rule change and not a legislative vote. Rules changes aren't subject to the same procedures as legislative and nomination votes are.

Posted by: Tully at April 26, 2005 04:59 PM

The maneuver they're talking about would not be subject to a filibuster. A Senator would make a procedural motion, and Dick Cheney, in his role of president of the Senate, would assent to the motion and call for a vote. If 51 vote in favor, the motion is passed and the judicial filibuster rule is gone.

There is a fascinating article about the constitutionality of all this in the Christian Science Monitor this morning. Let's just say there's a healthy debate among constitutional scholars about it.

Posted by: William Swann at April 26, 2005 05:10 PM

One of the issues involved is whether an earlier Senate can pass rules that can only be amended or repealed by a super-majority of a later Senate. In the House, the entire rule book is readopted every year by majority vote. As I understand it, the Senate doesn't exactly play the same way.

The concern is that the constitution is the only law which can authoritatively bind successive congresses. Suppose, for example, that the Republicans next year took a total of 75 seats in the Senate, and they then passed a rule which said that henceforth, debate on any tax measure could only be clotured by a vote of 3/4 of the whole Senate. A few years later, the country goes bankrupt (I'm kidding, I'm a Reagan guy, but for the sake of argument), the Republicans are thrown out of office, and are left with only 40 votes in the Senate. Well, the Democrats of course want to tax the rich right away as soon as they get back in power. But they only have 60 votes, so Republicans filibuster all tax increase bills, and the Democrats are not able to muster 75 votes for cloture.

Why should the majority in one term of Congress be able to bind subsequent Congresses to the same rules? That goes against some pretty basic principles of parliamentary procedure.

Posted by: PatHMV at April 26, 2005 05:55 PM

Whichever party is in the minority will love the filibuster most. Arguments from either side about the Founding Fathers are pretty much moot, as the FF's didn't have the filibuster and it only crept in by accident. By the time it was first used the FF's were dead. By the time it was first available to use on nominations they were over a century dead. The CSM article covers the byzantine basics of the current situation. And I love the quote from John McGinnis! "I think both sides are wrong."

The Harvard Law Review article (pdf warning) that I cited upstream goes over all that in such copious detail that it should answer all the questions on the detailed history. But it will also make your head ache, and make you long for a brief concise summary. Yep, they can change the procedure with a simple majority vote--but would much prefer not to because of the precedent it would set. Pat's observation is right on point--and the Senate has been arguing about it for the last coupla centuries.

Posted by: Tully at April 26, 2005 06:03 PM

Thanks Tully and William for the answers. I kind of figured the answer would be something like that, but didn't know the specifics. (And why do my own research when I have you guys around?)

Posted by: WHQ at April 27, 2005 01:07 PM