Centerfield

Alas, they are right about the uses of the fillibuster in the past. It hasn't exactly been used for the noblest of reasons. That aside, I'm still hesitant to trash it.

Posted by: AH at May 18, 2005 10:35 AM

The Constitution doesn't require or establish a filibuster rule, for judges or for anything else. It does give the Senate the "advice and consent" role, however, and it gives the Senate the authority to make its own procedural rules.

Thus, the Senate is free to have a filibuster rule or not, by it's own choice. It is essentially a political choice, and, that being the case, I'm surprised the LA Times thinks we're better off without it. These are lifetime appointments to the judiciary, which is supposed to be more careful, more deliberative, and less overtly political than the other two branches. Requiring only 51 votes in our current political environment will lead to a more partisan/ideological judiciary, as compared to requiring 60 votes. The LA Times doesn't seem to want that outcome, and yet they're asking for it.

Posted by: William Swann at May 18, 2005 10:43 AM

If I may venture a guess (and then I need to get some work done today...lol), I would guess that the LA Times and Reid are both following the same line of thinking...that if the American people see absolute power wielded by one party, the tables could turn in 2006. It's a risky strategy, especially considering the Senate seats up in 2006...if anything, they favor continued Republican control. However, Americans seem to value divided government...this could be the straw that breaks the camel's back--at least that is how some D's are seeing it.

Posted by: AH at May 18, 2005 11:05 AM

I think the strategy is extremely risky for the Democrats because they are going to be seen as being against democracy. As the LA Times editorial suggests, even a lot of liberals are likely to feel queasy about defending the filibuster. Whatever you think about the merits of these judges or the theoretical merits of filibuster as a way of protecting minority rights, it is clearly an anti-majoritarian tool. I suspect the GOP would love to run against Democrats defending the filibuster that was used to preserve segregation. And as much as these judges bother me, it's not clear that a few extreme conservatives can really carry a court.

Posted by: MWS at May 18, 2005 11:48 AM

I can't support the continuation of the filibuster as a tactic in any form other than as a staring contest that brings all business to a stop. In its current form, the price doesn't seem high enough. But we'll see who wins the PR battle on this.

My take on Presidential nominations is that once a President is elected, he should have the wider latitude that used to be granted, instead of the modern standard of having many nominations turned into p!ssing contests for symbolic purposes. nominees are getting shot down for reasons that IMO generally fall short of the thingsd i think they should be shot for. If you are a liar, a crook, or a cheat, then fine. otherwise, the ideological battle should for the most part be considered to have been won or lost as part of the outcome of the election.

Posted by: bk at May 18, 2005 12:01 PM

I have a question. There is another method of blocking judicial candiates called the 'blue slip'. A senator from the home state of the judicial candidate can block the nomination. Does anyone know why this wasn't used for some of the candidates on the Democrats' list?

Posted by: EG at May 18, 2005 12:14 PM

EG, as committee chair Hatch diddled blue-slip procedures in the '90's after the Gingrichians won Congress. Further diddling commenced, and the blue-slip is now effectively "inoperative."

Posted by: Tully at May 18, 2005 12:38 PM

For example, under double-slip practice Brown and Saad could both have been effectively blocked as both senators from California and Michigan are Democrats. Priscilla Owen would not have been blocked, as both the Texas senators are Republicans. If double blue-slip had been left in place we'd have had votes on some nominees, and some would never have left committee to be filibustered.

But both sides want to have their cake and eat it too.

Posted by: Tully at May 18, 2005 12:42 PM

BK,

I would agree with you with respect to Cabinet appointments, advisers, etc. (I think John Bolton should be confirmed for example.) But I can't agree with respect to federal judges. These people are appointed for life and their influence is likely to be felt long after the administration that appointed them is gone and, in some cases, long after society's politics have changed. Given a highly ideological administration, I think there have to be ideological battles over judges. Just because Bush won an election by 3% doesn't mean that he should be able to influence the courts for the next 30 years. Frankly, I would rather have a more straightforward ideological batter rather than the silly stuff over whether they are "qualified." What does being qualified mean? If someone is able to write good opinions, but has a radical judicial philosophy, is that qualified? It's naive to think that a judge's ideology and background doesn't influence his or her jurisprudence. So let's get it out on the table and I think we would be better off.

Posted by: MWS at May 18, 2005 12:48 PM

Who defines what ideologically extreme is? What is an ideological administration? Are you telling me that Bush's nominees are being blocked because of their ideology, or that if the current were a moderate his judicial appointments would all be approved without use of the filibuster? George W. Bush may be an ideologue to you, but the facts are that he won and did so by winning a majority of the electorate in the center.

The problem with your logic is that there is no clear way to decide whether or not a certain judge crosses the ideological line, and the result is a political fight that has nothing to do with a nominee's qualifications or their ideology. It all depends on politics. The truth of the matter is that certain judges have been appointed without objection of the minority party who are way more conservative than the seven who are being held up, mostly because of the media attention surrounding them. Furthermore, let's tell the truth here... Does anyone believe that Janice Rogers Brown or Miguel Estrada would be sitting on the bench today if it where not for the color of their skin and the fact that they also happened to be a conservative?

I am opposed to the nuclear option out of principle, but I can't help but feel that if it passes the Democrats are getting exactly what they deserve. Of course they will only be getting until they regain the majority.

The use of the filibuster to block judicial nominations is unprecedented and the result of a party that has gotten it's clock cleaned at the voting booth and simply has no other option to assert it's will. George Bush may have won the election by only 3 percentage points, but the Republicans have improved their situation in the legislative branch in the past two elections, and IMO, have the right to vote on the nominations that make it through the legislative process. Comparisons to Clinton are largely invalid, because the judicial nominations under his Presidency were blocked at a time when the President's party did not control the Senate. In other words, the majority ruled.

It is the Democrats and NOT the Republicans, although their means to an end is inappropriate, who this time around have encouraged partisan bickering and a logjam in the judicial appointment process for years to come. Traditionally, yes, the Senate has blocked nominations, but it also has acted in a bi-partisan way to appoint Presidential nominees of an extreme ideological stripe. For instance, a lot could have been made out of the nomination of Ruth Bader Ginsburg to the Supreme Court, but for the most part, the process was bipartisan. Those days are gone for a long time, and I am afraid that judicial nominees from an either party are going to face an unessecary and unfair political process which can only reduce the quality of the individual willing to accept that roll.

One could argue that the problem started during the Clinton years when the Republicans completely abused their power in the Judiciary Committee; however, the use of the filibuster has only expanded the problem and further served to discourage progress... Two wrongs don't make a right.

Posted by: Mathew at May 18, 2005 01:33 PM

Thanks for the clarification, Tully.

Posted by: EG at May 18, 2005 02:57 PM

Mathew,

I am not trying to argue that the Democrats should fight on these judges because I think they are extreme (although I do). My point is that judicial nominations ARE political and that the president should not have a free hand to shaping the federal bench for decades. It's naive to think that judges are not involved in making policy or that their ideology is not going to influence their decision making. It's one thing to say, Bush won the election so he should be able to have an administration that pushes his agenda. That's fine because they will open to judgment in four years. That's not true of judges and there needs to be an open acknowledgment of that and to face the fact that this is an ideological issue. I don't see why a president should get to influence the courts for 30 or 40 years without any pushback SIMPLY because he won the election. It's got nothing to do with these specific judges (although they bother me). It's about the process and who gets to make the federal judiciary. I don't think any president (whether liberal or conservative) should be able to control the judiciary for so many years without some pushback. And I would say that about Clinton too. Yes, I know traditionally this has not been the case and that Congress has rubber-stamped judges. But it wasn't right then and it's not right now. Who runs the Justice Department or State is, within some limitations, up to the president. But who resides on a federal bench for thirty years shouldn't be.

My point is why shouldn't there be partisan bickering about judges? Why should the president get a free ride on judges? It's called Advise and Consent; not Advise and Let Him do Whatever he wants.

And I wasn't really making a comment on the use of the filibuster. I was really commenting more generally on the judicial nominating process.

Posted by: MWS at May 18, 2005 03:45 PM

If judges would stick to the text of the constitution and leave the amendments and policy determinations up to the democratic process, then it wouldn't really matter what the ideology of any particular judge was. But once the justices started getting involved in hard-core political issues where there is no clear text in the constitution to rely on, as in Roe v. Wade, political fights over judges was inevitable.

Posted by: PatHMV at May 18, 2005 03:49 PM

PatHMV,

I always hear that judges should stick to the constitution. But that is sort of a meaningless statement. At the constitutional level, it is policy making. There is nothing clear cut about interpreting the Constitution. If you get a conservative and a liberal talking about the Fourth Amendment, for example, I'm sure both could come up with perfectly valid legal analyses justifying different positions. It's just not realistic to think that judicial analysis doesn't involve some degree of policy. Certainly, some judges have gone too far and have been more blatant, but you can't get away from the fact that there is no "objective" constitutional analysis. Objective analysis of, say, contracts, or property issues--maybe yes. But constitutional interpretation is inherently political.

Posted by: MWS at May 18, 2005 05:15 PM

MWS,

Of course, there will always be vagaries of interpretation of particular constitutional provisions. The constitution is written in broad terms so that it protects provides the proper organization for government and protects fundamental rights without having to be constantly amended like many state constitutions are.

As an attorney I am well prepared to argue one way or the other over how to interpret the Fourth Amendment, whether the consequence of failing to read an arrestee his rights should be exclusion of the evidence or not, whether the right to counsel means the right to free counsel.

The problem with Roe in particular, followed by Lawrence v. Texas and other recent cases, is that they are almost completely divorced from any text of the constitution. At least Roper v. Simmons, which I critique in this thread, deals with a specific textual provision of the Constitution. But, in Roe, Lawrence, Roper, and many other recent cases, the Court has injected itself into topics which at the time of the opinion were being strongly debated through the democratic process. And with the exception of Roper, rely on only the vaguest of connections to the actual text of the constitution.

To summarize Roper again very quickly. In 1989, the Court, with Justice Kennedy concurring, found that it was not "cruel and unusual punishment" to execute 16 and 17 year olds convicted of heinous murders. Earlier this year, just 16 years later, the very same Justice Kennedy who concurred in the earlier opinion, held that, because 5 states had abolished the death penalty for such minors since 1989, it was now suddenly unconstitutional for any state to execute someone who is even 1 week shy of their 18th birthday at the time the murder is convicted.

That is not constitutional interpretation in any way, shape, or form. That is pure politics.

The Supreme Court got itself in trouble for this before, as many of us have been reminded in recent years. The court, with little text to rely on, struck down wage and hour regulations passed as part of the New Deal, rather than defering to the political branches of government. Those decisions were reversed just a few years later. As a conservative, I don't always agree with the minimum wage, and as a federalist, I don't necessarily approve of such decisions being made by Congress, but I would much prefer that Congress make such decisions than the Court.

Posted by: PatHMV at May 18, 2005 05:37 PM

Well put PatHMV. I can't add anything to that.

Posted by: doverspa at May 18, 2005 06:00 PM

Great article! Rachel

Posted by: Buy Propecia at May 18, 2005 07:14 PM

(Draws deep breath....counts to ten)

Filibusters are constitutional, because they follow Senate rules, and the Constitution gives Congress the responsibility to set their own rules. It isn't constitutional to flout those rules; the nuclear option violates the Senate rule that a 2/3 majority is needed to change any rule, including the cloture vote rule.

Now, say that three times fast.

Personally, I doubt Frist has the votes; if he did, the vote would have been taken already and we'd be discussing the fallout.

Posted by: Blue Jean at May 19, 2005 12:23 AM

Blue Jean,

The constitutional problem is not the filibuster itself, it is with the rule that it takes a 2/3 vote of the Senate to modify Senate rules. A majority of one session of the Senate cannot bind future sessions of the Senate. Because the Constitution is silent on the specific amount of votes required to pass Senate rules to begin with, that means that a simple majority was required for their initial adoption. The 2/3 requirement to amend the rules is only another rule, not a provision of the Constitution. Allowing one session of the Senate to require a supermajority to change the rules themselves would lead to absurd results.

Imagine, for example, that one day in the near future Republicans were to hold a 2/3 majority of the Senate. And they passed a rule which says that henceforth a 3/4 vote of the Senate would be required to end debate on any bill which would have the effect of raising taxes. This would be perfectly valid under your argument. The consequence, of course, would be that we would never have another tax increase in this country again, unless you could somehow get 76 Senators to agree to it.

Allowing the rules of the Senate to require a supermajority to change the rules themselves would allow the Senate to impose supermajority and other requirements for bills which are not provided by the constitution. And that would be unconstitutional.

Posted by: PatHMV at May 19, 2005 01:28 AM

As for Frist not having the votes because he hasn't done it yet, that argument just doesn't hold water. Getting rid of the filibuster is definitely a big deal. There are good reasons to do it, and some good reasons not to do it. Nobody is going to take this step lightly. And some of the Republicans are only going to vote for it if the leadership exhausts every other reasonable possibility. That means Frist must go through it all, allow ample debate, and be seen to have offered very reasonable compromises (which he has, in my opinion).

There yet may be a compromise. Democrats may convince 6 Republicans to agree to vote against one or two of the nominees in return for letting all the rest go to a vote. Then the Democrats would not fight cloture when the vote is called for Priscilla Owens later this week. But that won't involve Frist or Reid.

Posted by: PatHMV at May 19, 2005 01:36 AM

What Pat said. The "can't change the rules" argument has literally been around since the Senate has, and history, precedent, and the Senate parliamentarian all consistently say "Bull Droppings." Each new session can set the rules as they see fit, and amend them as they see fit, and no future session is bound by them save by consent.

There is a (weak, IMH non-attorney O) argument to be made that the filibuster is unconstitutional when used against nominees for the reason that the nominations are a pergoative of another branch. I think it's weak because it's up to the Senate to set their own rules, and thus it's up to them to decide what "advice and consent" consists of, and how it is achieved. But by the same token, holding nominations away from a floor vote means a failure to provide either advice or consent. But I'll let the attorneys argue those points.

Everybody got your popcorn? The show's getting ready to start.

Posted by: Tully at May 19, 2005 01:44 AM

An on-point article by constitutional law professor Charles Fried of Harvard in the Boston Globe this morning.

Posted by: Tully at May 19, 2005 09:04 AM

Pat -- You're representing one side of the argument over the constitutionality of rule changes rather well. I'm sure you're aware of the other side, though, which seems to be accepted by quite a few constitutional experts.

I'd like to put one analysis into evidence here. There are very few places you can look these days for a substantive examination of these issues that isn't tied in an obvious way to one side or the other. One exception may be Congressional Research Service, an arm of the Library of Congress that was established to perform nonpartisan research for Congress. I used to work for CRS -- it was my first real job coming out of college -- so I can offer some insight into how things work there. Their reports are requested and used by members of both parties, which puts them under constant pressure to offer substantive, balanced analyses.

They issued a report in April of this year on the judicial filibuster rule. Here's a link.

They also issued a report on the history of cloture attempts, which you can find here.

Posted by: William Swann at May 19, 2005 09:18 AM

I tend to agree with MWS, as I have tried to explain here and here.

Posted by: amba at May 19, 2005 09:58 AM

Tully -- I was a little surprised by some of the arguments and observations made by Prof. Fried in that article. For example, this:

The confirmation process has been politicized beyond anything we've seen in the past. Special interest groups have staked out extreme positions on a host of issues -- the death penalty, racial preferences in education, and partial birth abortion, to name a few. If a nominee fails to meet a litmus test on any one of these issues, the groups demand a filibuster.

My understanding is that conservative, pro-life judges have been confirmed by the Senate. So it doesn't seem like failing a "litmus test" on any one issue is enough to cause a filibuster. Also, it doesn't seem like the present environment is dramatically "more politicized" than the Clinton years.

Then there's his formulation of the basic constitutional argument currently being offered by conservatives:

The Constitution does not say one word about filibusters, but it does state that "each house may determine the rules of its proceedings." Does it speak by implication? In the case of impeachments "no person shall be convicted without the concurrence of two-thirds of the members" of the Senate. Either house may expel a member for disorderly behavior but only with the concurrence of two-thirds of the members of that house. Treaties must be ratified by two-thirds of the senators present. The president's veto may be overridden by two-thirds of each house. And to propose amendments to the Constitution, two thirds of both houses are necessary. It is therefore a fair inference that, unless another voting rule is prescribed, in all other cases only a simple majority is required.

You can see the tension in his argument by considering his very first point -- that the Constitution explicitly says the Senate can make it's own procedural rules -- and the rest. If the Constitution says the Senate can make its own rules, and remains silent on the question of a rule for confirming nominees, isn't the obvious conclusion that there is no constitutional rule on confirmations? I'm not sure how conservatives can find an "implicit rule" here while getting all hot and bothered about activist liberal interpretations of the Constitution.

Because this seemed a little odd, I took a peek at Prof. Fried's legal background. Apparently, he was Solicitor General in the second term of the Reagan administration, selected by Ed Meese for that position. Whether his views are influenced by partisanship, I couldn't say -- but he's certainly on friendly terms with one side in this debate.

Posted by: William Swann at May 19, 2005 10:19 AM

William,

One of my law professors had a saying about lawyers: "Have license, will argue. Either side, for fee." So yes, I am aware that their are other sides of the argument, and I'm glad to see the good points you bring out through the CRS reports.

I have said that I don't particularly care to eliminate the filibuster, but that I think it is the only approach left. Because as unprecedented as ending the filibuster is (and many in the Senate have advocated for that or attempted it, including noted liberals such as George McGovern and Robert Byrd), the Democrats' stonewalling of mass numbers of circuit court judicial appointments on ideological or religious grounds is equally unprecedented.

The following chart looks solely at the actions taken on judicial nominations during a president's
term (his first two congresses. This makes it a completely apples-to-apples comparison. It doesn't reflect whether Clinton or Bush's nominations were "ultimately" confirmed or not. It just looks at how things stood at the end of the president's first term. These statistics and far more are available at Daly Thoughts, which lists all of the raw data for each president and each congress and the Senate makeup during each congress.

Truman 90.9%
Eisenhower 88.5%
Johnson 97.0%
Nixon 92.7%
Ford 79.2%
Carter 91.8%
Reagan 78.6%
G.H.W. Bush 77.8%
Clinton 71.4%
G.W. Bush 52.2%

I have a quibble or two with the tone of the first CRS report you cite, on filibusters, but I won't go into those and will instead focus on my agreement with some of its points. I do appreciate, and neither they nor I are the first to note it, that a better solution might be to make a filibuster cost more, politically, to the filibustering party than it does now. As the report notes, the "Two-Speech" rule could be applied to judicial (and other) nominations, so that, once all Senators have spoken twice on the nomination, a vote would be held without need for cloture. Or, as the article notes, the Senate could bring back the requirement of "extended continuous session" to put pressure on filibustering Senators. In other words, bring back the "Mr. Smith Goes to Washington" type of "real" filibusters.

Of course, all of those alternatives would also require changing Senate precedent or amending Senate rules. I have not heard Senator Reid or any other prominent Democrat propose them. So to accomplish such changes, the Republicans would still have to railroad through a rules change, with the attendant political costs. The alternativez would be great grounds for compromise, but if the Democrats refuse to entertain real compromise (real compromise on procedures, not "we'll let 1 or 2 judges go through and save our powder for the next fight"), then what advantage is their to the Republicans to moderate their demands at all?

Tully has drawn the picture that all of us are like the kids on the playground, forming big circle around the protagonists while yelling "fight! fight! fight!" while we are both fascinated and horrified. Many such fights are, in the end, avoided because one side or the other backs down. That's still possible here. I really think the Democrats may, in the end, vote for cloture and let these nominees go to the floor, so they can save their ammunition for a Supreme Court nominee.

Posted by: PatHMV at May 19, 2005 10:33 AM

...he's certainly on friendly terms with one side in this debate.

Isn't everyone who's tremendously qualified to speak on the subject? Almost by definition? Fried specifies every instance where the Consitution specifies a Congressional non-simple majority vote. Nominations aren't on the list. I mentioned the only Constitutional angle I could see, and it still comes back to the Senate being able to determine its own procedures by majority rule, whether done at the start of session, or later by procedural gaming.

The nomination process heated up during the Clinton years, and the GOP tried unsuccesfully to filibuster a couple of Clinton appointments. Full-scale blanket filibustering of nominees had to wait for 2003, and since. I suspect it would have begun in 2001 if Jeffords hadn't defected when he did. But it has certainly escelated, and "more politicized" is certainly an apt description.

We're watching a political fight, not a Constitutional one, no matter what either side says. And probably an inevitable one, given the shift of power over the last decade or two. So grab some popcorn.

Posted by: Tully at May 19, 2005 10:59 AM

A side note: the figures Pat cites are for Appeals Court nominees, not District Court nominees. It's a big talking point to dilute the figures with the District Court nominations, but they've never been particularly contentious and the fight isn't over District Court nominations. Using District Court nominations to dilute the confirmation figures is misdirection.

Posted by: Tully at May 19, 2005 11:05 AM

Tully,

Thanks for the clarification. I had meant to make that point, but just forgot.

Posted by: PatHMV at May 19, 2005 11:14 AM

As unprecedented as ending the filibuster is (and many in the Senate have advocated for that or attempted it, including noted liberals such as George McGovern and Robert Byrd), the Democrats' stonewalling of mass numbers of circuit court judicial appointments on ideological or religious grounds is equally unprecedented.

That strikes me as a modest spinning of the facts. Yes, Bush has gotten less of his Appeals Court nominees than Clinton did. The eventual confirmation rate for Clinton was 73%, and for Bush 65%.

But Bush has gotten far more of his District Court nominees than historical average -- a whopping 96.6%, compared to Clinton's 87%.

Yes, Appeals Court judges are far more important than District Court judges. But that doesn't make the District Court unimportant.

Altogether, I don't think obstructionism in the Bush era is dramatically greater than the Clinton era. The techniques are different, due in part to the demise of the blue slip process.

Of course, all of those alternatives would also require changing Senate precedent or amending Senate rules. I have not heard Senator Reid or any other prominent Democrat propose them. So to accomplish such changes, the Republicans would still have to railroad through a rules change, with the attendant political costs.

It looks to me like the options discussed in the CRS Report, and in Norm Ornstein's piece, don't all involve rules changes. Some involve changes in precedent, which is a lower-level concern than changing Rule XXII. They also involve a return to previous precedent that was practiced over long historical periods, while the "nuclear option" appears to have extremely limited basis in Senate history or tradition.

I'm tempted to conclude, frankly, that the "nuclear option" is a really bad fit with any sort of conservative principles, and that one of the other options is far more reflective of conservative philosophy.

Posted by: William Swann at May 19, 2005 11:37 AM

Isn't everyone who's tremendously qualified to speak on the subject? Almost by definition?

Maybe not. CRS works for members of Congress from both parties, which means, at present, that most of their clients are Republicans. I've personally witnessed analysts being called on the carpet for reports that failed to include all the arguments, considerations, or facts from both sides of the debate. There's a constant incentive to nail it down factually and analytically.

I also wonder whether Prof. Maltese, the author of this article, is "friendly" with either side of the debate. I know what answer he ultimately comes to, and I think you could question some of his phrasings as perhaps leaning to one side, but this seems like an awfully more in-depth examination of the whole thing than you'll find almost anywhere else.

The nomination process heated up during the Clinton years, and the GOP tried unsuccesfully to filibuster a couple of Clinton appointments. Full-scale blanket filibustering of nominees had to wait for 2003, and since. I suspect it would have begun in 2001 if Jeffords hadn't defected when he did. But it has certainly escelated, and "more politicized" is certainly an apt description.

I think it's a misleading description. I doubt you would argue that blue slips are less "political" than filibusters. In fact, they're more inherently egregious, since they involve the action of only one or two Senators to bring a nomination to a halt.

Of course, the Republicans use the committee process as well during the Clinton years -- failing to hold hearings on some of his nominees. That's more legitimate, since they were in the majority at the time. But it's still inconsistent with their current argument -- that the Constitution requires an up or down vote on each nominee.

It's fair to say that the Democrats have had roughly as much success blocking nominees as the Republicans did under Clinton, and that the Democrats actions are less legitimate given that they don't hold the majority in the Senate now, while the Republicans did during most of Clinton's presidency.

I'm not sure you can say the process is "more politicized" though. The Republicans chose not to try to defeat Clinton's nominees on the Senate floor -- that was too messy and politically costly. They used parliamentary tactics. In both cases, the process was highly politicized.

Posted by: William Swann at May 19, 2005 12:20 PM

William,

I would just remind you that the Republicans have acknowledged, publicly, that they should not have denied floor votes to nominees in the past. And Senator Frist's proposal would have changed the rules to prevent obstruction by both the minority (by getting rid of filibusters) and the majority (by preventing the nominee from being bottled up in committee for longer than a well-defined period of time).

That is not, of course, to say that Republicans are all goodness and nice. As Tully continually reminds us, this is a political battle. My point is that the Democrats have also been engaging in unseemly political practices, exercising what political power they have. And if it's all about political power, then the side with more of it is going to win. I'll be happy to share blame for where the Senate is today with the Democrats... but only if it is share and share alike.

Senator Reid is the one at this point who has announced he won't negotiate any more. Call him up and tell him to offer one of the alternatives proposed in the CRS report. That would change the dynamic. But he's not been doing that and he's not going to do that. Just yesterday he was still hung up on the long-disproved claim that Alberto Gonzales called one of Judge Owens' opinions unconscionable judicial activisim, when in fact Gonzales was clearly referring to the opinions issued by the other judges in the case.

Posted by: PatHMV at May 19, 2005 12:57 PM

You make a number of fair points, Pat, but I would challenge this one:

Senator Reid is the one at this point who has announced he won't negotiate any more. Call him up and tell him to offer one of the alternatives proposed in the CRS report. That would change the dynamic. But he's not been doing that and he's not going to do that.

I believe Sen. Frist has adopted his position as a matter of principle -- e.g., he won't agree to any compromise that doesn't involve the demise of the judicial filibuster. I don't think we have a negotiating Frist versus an intransigent Reid.

I would also bet money that it wouldn't "change the dynamic". I suspect it's a less appealing option for Frist than the ones currently on the table. If the Democrats are forced to use the traditional filibuster, they will probably narrow their list of judges, but still be able to pick those they find most objectionable. Some of the current deals have them allowing some of the ones they like least, while also agreeing to use the filibuster only in "extreme cases", which would presumably be the result of returning to the traditional filibuster.

The "traditional filibuster" approach seems a good bit more flexible, from a Democrat point of view. I believe Frist will not accept a compromise that leaves that flexibility in place.

Posted by: William Swann at May 19, 2005 01:19 PM

I don't know where you get that 96+% figure from, William. Could you please provide a source? Though a bunch of District Court nominations were confirmed in the past few months, I don't think it comes to anywhere near that many. Unless the Dems let the whole bunch pass on through as window dressing, which would still tend to confirm my point--that the current fight isn't over District Court nominees, it's over Appeals Court nominees.

The current figure for Bush Appeals Court nominees is 66 nominated, 35 confirmed. That's 53% confirmed no matter which calculator I use, not 65%. (No fair counting recess appointments made without Senatorial confirmations.) And that 53% includes two judges who were originally nominated by Clinton after Congress was seated in 2001 but before the Bush inauguration (itself an unprecedented move) then later re-nominated by Bush and confirmed.

The last figure I have for overall (combined District and Circuit) Bush nominees/confirmations is 259 total nominated, 204 confirmed. That's not 96%. It's 79%. Clinton's totals were 84% combined. [Judicial Nomination Statistics: U.S. District and Circuit Courts, 1977-2003. CRS (pdf)]

Blue-slip "less political?" Nothing involved in Seante politics is "less political." It's all 100% political. But I would certainly argue that blue-slip was more genteel, more in keeping with Senate tradition, precedent, and practices, and allowed the minority a safety valve. It's certainly less confrontational and involves less brinksmanship than filibustering. And let's face it, what we're seeing is an escalation in brinksmanship. There are NO innocent parties involved, other than perhaps the nominees.

Posted by: Tully at May 19, 2005 01:36 PM

William,

As I understood the explanation of the "two speeches" rule in the CRS report you cited, it would eventually allow an up or down majority floor vote. So that is not ruled out even by Frist's stated bottom line.

I would also note that self-proclaimed bottom lines rarely are actually the bottom line in any negotiation. Reid has made several proposals, but none of them involve ANY changes in procedure, at all. Instead, all of his proposals have been essentially unilateral promises by the Democrats to avoid future filibusters except for "extreme" nominees. Of course, the Democrats have already labelled each and every one of the seven as being "extreme".

As your CRS reports indicated, one thing which would have to accompany a return to the "traditional" filibuster is to change the rule which would allow the filibustering party to suggest the absence of a quorum. That rule is what caused problems for the majority rather than the minority when the Republicans tried to force a real filibuster last year. Whenever the speaker got tired, he would suggest an absence of a quorum. All the other Democrats had long since gone home. If there was no quorum, then things would adjourn until there was one and the speaker could pick up where he left off. In order to keep a quorum, the Republicans were the ones who had to sleep in the hallways, ready to go in at a moment's notice.

I really do think the dynamic would change if Reid offered a procedural compromise. He really has not done that at all yet. His only proposals have been essentially ones that involved a few of the current judges getting in and then an uneforceable, essentially vague promise not to do this all again next time. In return, he wanted the Republicans to make a concrete, easily identifiable guarantee not to change the filibuster rules until after the next Congressional election. That's just not a fair deal at all. If the Democrats broke the deal later on, they'd just say "hey, we said we would only filibuster in extreme cases, and this is one extreme judge!". But because the Republican promise would be so specific, they would have little choice but to honor it.

Remember that Reid doesn't need to convince Frist. He needs to convice Olympia Snowe, Chuck Hagel, Voinovich, Specter, and the other wavering Republicans. They obviously don't really want this, but Reid hasn't given them a truly palatable alternative yet.

Posted by: PatHMV at May 19, 2005 01:49 PM

The numbers for the Appeals Court come from Gerry's really long analysis at Daily Thoughts.

He did the analysis in March of this year, and gives the aggregate totals for Bush as 34 out of 52 nominees, which is 65%.

For Clinton, it is 66 out of 90, or 73%.

There's also an extended discussion in the comments about District Court nominees, starting at comment #81. They talk about the CRS report you cite, but the publication date of early 2004 is problemmatic, because a deal on District Court nominees was struck early that year that led to confirming 25 judges.

Their ultimate calculation was 172 out of 179 for Bush, which is 96%.

The data their discussing comes from these two pages of the DOJ website:

Judicial Nominations During the 107th Congress

Judicial Nominations During the 108th Congress

Posted by: William Swann at May 19, 2005 02:22 PM

Remember that Reid doesn't need to convince Frist. He needs to convice Olympia Snowe, Chuck Hagel, Voinovich, Specter, and the other wavering Republicans. They obviously don't really want this, but Reid hasn't given them a truly palatable alternative yet.

I think the political dynamic is somewhat different from that. All of those folks are under *huge* pressure to go along with their party and the wishes of all the conservative activists out there. It takes a total of 6 of them to change the outcome (assuming no Democratic defections), and some will be reluctant to stick their necks out unless at least 6 switch.

Also, their are proposals for compromises coming from both sides, and impromptu meetings happing all over the place. All of the compromises we've heard about involve specific judges, not concrete procedural changes. If that's the case, then it's apparently how the moderates on both sides are choosing to negotiate.

At this point, they're negotiating with each other, not with Reid. So the terms are theirs, presumably.

Posted by: William Swann at May 19, 2005 02:33 PM

Got it, William. Package deal to rush through a pile of District Court nominees to boost the percentages, and collapse of the re-nominations in subsequent Senates back into the figures. Those re-nominations screw it up every time. The District Court judges still aren't what the shouting is about. It's still about the appeals court nominations. (Current Bush count 35/54/64.8%, with re-nominations only counted as one nomination/result, and with the two Clinton carryover nominations excluded.)

To be strictly fair to the Dems, though, it's not quite right to compare a still-running second-term CirCT record with a closed-out two-term one. To get his percentage up Clinton had more time to work with, so a "short" percentage on Bush at mid-term doesn't mean as much as the GOP would like to make of it. Have to carry it to the end of Bush's second term for valid comparisons.

But it would still be appropriate to compare their first terms. The trend is still to much longer rejection rates and confirmation times. In Clinton's first Congress (103rd) he had a 90% confirmation rate for DistCt nominees and 86% for CirCt nominees. Figures for Bush in the 107th were 76%/53%.

Lott's Table 1A shows the lag times between nomination and confirmation for all Congresses back to the 1977-78 Congress. You can see clearly what the problem is there, and when it started. In the 106th Congress, 1999-2000, the average nomination confirmation lag for DistCT judges was about 130 days, CirCT 170 days. In the 107th, Bush's 1st, the lag was about the same for DistCT, but shot up to almost 500 days for CirCT. In the 108th, DistCT rose to a record 190 days while CirCT lag came down to a "mere" 295-300 days.

This roughly coincides with the Senate becoming a bunch of babbling ideologues, the last two years of Clinton and the last first four years of Bush. The suspension of "blue-slip" accounts for the longer times in part in the 106th-108th, as nominations were held in committee rather than simply being returned on blue-slip rejections. The rest I have to put down to escalating obstructionism.

And yep, the sensible Senators on both sides are end-running their "leaderships" trying to see if there's enough of them to restore a little sanity to the sandlot.

Posted by: Tully at May 19, 2005 06:14 PM

Now, Pat, I didn't say that Frist would NEVER get the votes he needed, only he hasn't gotten them yet.

Remember, Frist has term-limited himself; he's only got three years to go in the Senate, whether he runs for President or not.
This puts him at a disadvantage via Reid, who isn't going anywhere, as far as I know. Most of the Republican Senators would like to stay around for a while; they don't want to vote for a rule change that may come back to bite them four or six or ten years down the road, when Frist and W will be gone. That's one of the reasons they're reluctant for this vote. It's hard to follow a leader into battle when he has a great deal more to gain and a lot less to lose than you do.

Add to that, the polls are running two-to-one against the nuclear option. Granted, polls don't mean much this far out, but if you're running for re-election, you can't afford to ignore numbers that high. Especially when Congress's approval rating is a dismal 33%--and your party's running the Congress.

That's why, I believe, Frist put the vote off for a week. Right now, the seven judges are just faceless entities to most of the public. Part of the strategy is to put the most controversial judges first (Owens and Brown) and give them some warm n' fuzzy treatment, in hopes the polls will turn around. It may work...but I doubt it.

Posted by: Blue Jean at May 19, 2005 10:47 PM

Absolutely. Frist will be quite happy with the sight of the Democrats savaging two women in public, one of them African American, all over the evening news.

Posted by: Tully at May 20, 2005 10:38 AM

Too true. The media campaign has already begun, as you can see by this article in the LA TImes;

http://www.latimes.com/news/nationworld/nation/la-na-owen19may19,0,5587067,print.story?coll=la-home-nation

Here we learn that Owen "loves children". Of course, she didn't love one child named Willie Searcy, but that's another story.

Of course, Frist is busy rallying the troops for '08. It all reminds me of that moment in "Blazing Saddles" (no, not the "The Sheriff is near!" moment) but the one where Hedley Lamarr talks to his gang before they ride down on the town.
"You all may be risking your lives, but I, on the other hand, will be risking a near certain Academy Award nomination."

Pass the popcorn indeed. And the ammunition. ;)

Posted by: Blue Jean at May 20, 2005 09:45 PM

Blue Jean,

I've just read the Willie Searcy case. Several points to make.

In the first place, the real cause of Willie Searcy's injuries was the 17 year old idiot driver of a Mercury Cougar who veered across a median and into on-coming traffic, hitting the Ford Ranger pick-up truck being driven by Willie's step-father. But it appears he wasn't sued, I suppose since Ford had the deep pockets and he didn't. At or shortly before the accident, Willie may have been leaning forward to pick up some trash off the floor of the truck, possibly leaving 6 to 8 inches of slack in his seat belt. Willie's parents contended that Ford improperly designed the "tension eliminator" of the seat belt, and thus there was extra slack in the seat belt which contributed to his having more severe injuries in the collision. Willie Searcy's spinal cord was injured and he became a quadrapalegic.

Willie's mother and step-father filed suit against Ford and the dealership which sold them the Ranger in Rusk County, Texas. The only connection Rusk County had to anybody in the case was that there is a Ford dealership there. Not the one that sold them the truck, mind you, just a Ford dealership. Willie Searcy and his family are from Dallas County, the collision happened in Dallas County, the defendant dealership is in Dallas County, and the Ford regional headquarters is in Dallas County. Rusk County is closer to Shreveport than it is to Dallas. One account I found on-line said that Rusk County has the third highest tort awards in the state of Texas.

Obviously, the family filed suit in a county they thought would be more favorable to getting a huge award. In doing so, their trial attorney knowingly took a risk that it would be overturned on appeal for lack of venue (because the suit was filed in a county with absolutely no connection to the case). Ford fought venue in the trial court, very hard. There was testimony over it. And Texas law is very clear that proper venue is essential to the validity of a judgment. Section 15.064 of the Texas law on Civil Procedure provides:

(b) On appeal from the trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversible error. In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits.

That's what the law says. A judge cannot overlook it. They can't say, too late now. The legislature passed that provision in 1985, and a judge who disregarded it would be violating their oath of office, no matter how sympathetic the plaintiff. Justice Owen and 4 other judges of the Texas Supreme Court (including Justice Gonzales)found that the legal criteria for gaining venue over a corporation were not met in Rusk County simply because Ford owned 75% of the Ford dealership there.

The complaint against Judge Owen is that she took too long to decide the case and shouldn't have ruled against the plaintiffs on the venue issue. Ultimately a Dallas county court of appeals issued a ruling ordering Ford to pay money to care for Willie, but Willie died 4 days after that ruling because they didn't have enough money to pay for round-the-clock care and his ventilator stopped working in the middle of the night when the family was asleep. Of course, if the trial lawyer representing Willie had filed suit in the right place to begin with, instead of gambling with venue to get a bigger judgment in a county with no connection to the case, then Willie might have gotten that money years and years earlier.

So if by suggesting that Justice Owen didn't "love Willie Searcy" you mean that she preferred to follow the law rather than just turn over huge amounts of money from a private company with deep pockets to the family of a child who was injured by an idiot 17 year old driver, then I suppose she's guilty. Judges are not supposed to rule out of emotion, because all men and women are equal before the law. Would you want a judge to rule in favor of your spouse in a divorce proceeding because he or she was more sympathetic than you? If you were a small business owner, would you want to have to pay millions of dollars for injuries that weren't your fault, just because the judge "loved" the person suing you? That's not the way it works here.

Posted by: PatHMV at May 21, 2005 02:39 AM

I was speaking facetiously, Pat; guess I should have added a smiley. ;-) In any case, I was being irrelevant, as well as irreverent, since Owen never met Willie Searcy in person.

Now, in the aforementioned accident, the seatbelt holding Willie’s brother, Jermaine, functioned correctly, thus saving Jermaine from serious injury. Willie’s seatbelt didn’t work right; before anyone jumps to the conclusion that the family was just looking for a big pay off, please recall that Willie’s stepfather was a parts clerk for Ford, and he knew how seatbelts are supposed to function.

You're right, I don't expect a judge to "love" one client more than another. I do, however, expect her to make a ruling in a timely manner, especially when both sides have requested she do so. In Owen's case, she waited TWO YEARS before deciding on the venue change. This may not seem like much in the great scheme of things, but to the family who had to provide round the clock care for their son through a network of friends and volunteers, it was quite a burden. It’s especially troubling since the “venue was not among the issues, or "points of error," the court said it would consider two years earlier when it took up the case.” For more,

http://www.salon.com/news/feature/2005/05/12/priscilla_owen/print.html

Now, I'm not saying that this slow-walking has anything to do with the $20K in campaign cash she received from Ford, but still, one has to wonder....especially when one considers that in Texas, Justices are allowed to pick their cases through a blind draw. All Owen knew of the case was “Searcy Vs. Ford”

Perhaps I should say that if Owen “loves” anyone, she loves the big ticket folks (Enron, Dow Chemical, and Farmers Insurance) who have given her lots and lots of campaign cash, since she favors them about 85 percent of the time. This is quite a point, since one of the ‘official” reasons that the GOP filibustered Abe Fortas was that he was“unethically” paid for a lecture serires.

In the meantime, I’m trying to figure out Santorum’s comment when he accused the Allies of bombing Paris. Just who bombed Paris, anyway?

In fact, when it became clear that the Nazis would have to abandon the city, Hitler ordered all the monuments, all the art museums, all the cultural treasures to be wired to explode when the Nazi army had left. Fortunately, his sub commanders disobeyed and Paris was saved. Guess Ricky didn’t read that part of the history book.

Posted by: Blue Jean at May 21, 2005 01:25 PM

Blue Jean,

:) Just a couple of quick reponses. The "blind draw" allotment means the judge is blind. As I understand it, they pick the cards essentially out of a hat, without seeing the names of the cases on them.

I don't that it's fair to pin all the blame for the delay on Judge Owens. This was a complicated and contentious case. It was a 5-4 decision, with some judges joining one part of the decision, other judges joining other parts. The court staff who have since spoken out about the case themselves say this was bitterly contested within the court. The 2 years were not just time spent to write the opinion. It was 2 years for the entire court to decide how to rule. I'm not defending the delay, I'm just saying that it was not solely (and maybe not at all, I don't know) the fault of the judge initially assigned to write the opinion.

And of course if the plaintiff attorney had not gone forum shopping for a good jury, the result of the retrial in Dallas would have been obtained much more quickly, too.

Posted by: PatHMV at May 21, 2005 04:09 PM

Hi, Pat,

I'm not blaming her for everything. As I have said, I'm not a lawyer; I don't even play one on TV. ;-) By the same token, I don't think it fair to blame Akers, the plaintiff lawyer, for everything; there's plenty of blame to go around. I'm just saying that it's part of a disturbing pattern, that's all. Thanks for your answer! :-)

Posted by: Blue Jean at May 21, 2005 09:21 PM

Blue,

I've been aching to play a lawyer on TV my whole life! It looks like much more fun than playing one in real life... Of course, any profession that you have to "practice" for such a long period of time is questionable to begin with. You'd think we'd eventually get the hang of it, wouldn't you?

Just kidding, of course. I actually love being a lawyer (except when my clients are slooooowwwww to pay their bills). You get the chance to do a lot of good if you want, and you are basically paid to read, talk, and argue. I'd do those things for free, but instead I get paid (sometimes... that slow paying client thing again)!

I enjoyed the discussion; glad you pointed out the case, which I hadn't heard of yet until you mentioned it.

Posted by: PatHMV at May 22, 2005 12:15 AM

LOL, Pat! That reminds me of the old Benny Hill joke, where the missionary asks the tribe chief "Do you practice cannibalism?" And the chief says "No, we're very good at it." Toldja my sense of humor threshold was low. ;-)

Well, you know Bill Clinton said; "Politics is show business for ugly people." ;-) This is surprising, because I've been an extra on both fronts, but marginally better on the former than the latter.

I have played law people on stage: though because of my gender, I'm usually tapped to play "stenographer" or "expert witness." My discussions with you guys are a lot more fun, though. :-)

Don't give up hope, though. Fred Thompson went from politician to actor to Senator, so there's hope for all of us.

You're welcome on the case, though! Thanks for showing me the other side. It's always great to compare notes!

Posted by: Blue Jean at May 22, 2005 12:16 PM