Centerfield

Check out this pots on the compromise and this one.

I hope this is the prelude to more Centrist action in the future. But even if it's a one time thing, what a great victory for reason.

Posted by: Alan at May 23, 2005 09:19 PM

Those links seem not to be active. Here is the html.

http://theyellowline.blogspot.com/2005/05/sanity-prevails-centrist-senators.html

http://chargingrino.blogspot.com/2005/05/compromise.html

Posted by: Alan at May 23, 2005 09:21 PM

I don't know that this is a great victory for "reason". It's a great victory for compromise, certainly, and possibly compromise solely for compromise's sake. But I didn't hear anything which provided any logical reasons for any of the 14 deciding which judges would get up or down votes and which wouldn't.

Now, a compromise where the 7 Democrats promised to vote for cloture and the 7 Republicans voted against some or even all of the judges, that would have been a reasoned compromise.

Instead, next time my own Senator Landrieu is up for reelection, her opponent won't be able to say she voted against Judge Saad or Judge Myers. Because she didn't vote against those judges, she just voted to keep having more debate on them. That's less clarity for the voters. I've voted for Senator Landrieu twice before (because of some family connections and because the GOP opponents were just terrible), but I won't be voting for her again. But those who don't follow the intricacies won't have a clear picture of what judges she is really willing to vote for or against.

It is also a deal where it will be very easy to claim Republicans violated it (if they vote for a rule change), but very difficult to gain traction with a claim that Democrats violated it (because "extraordinary circumstances" cannot be evaluated objectively). I read that Senator Reid has already announced that Meyers will be filibustered.

Posted by: PatHMV at May 23, 2005 09:50 PM

Kudos to the moderates. We win one!

The Moderate Voice has a roundup.

Posted by: rickheller at May 23, 2005 10:41 PM

When it comes time to evaluate which side takes a calmer, more principled approach to political battles, please contrast the following quotes from Democratic Senator Harry Reid and Republican Senator Bill Frist.

Reid: "Tonight the Senate has worked its will on behalf of reason and behalf of responsibility. We have sent President George Bush, Vice President Dick Cheney and the radical arm of the Republican base an undeniable message: Abuse of power will not be tolerated, will not be tolerated by Democrats or Republicans. And your attempt, I say to the vice president and to the president, to trample the Constitution and grab absolute control is over."

Frist: "It has some good news and it has some disappointing news and it will require careful monitoring."

Which quote is more respectful of moderation, compromise, and tolerance for opposing view points? Which one claims a bipartisan compromise as a partisan victory? That one quote by Reid will cause a great deal more damage, frankly to the Republican moderates who made this deal possible. They went way out on a political limb to do this deal, and the Democratic leader has the gall to claim this as a victory in which those Republicans have stiffed it to the leaders of their party? Why would they ever want to work with Democrats again? Posted by: PatHMV at May 24, 2005 01:07 AM

You forgot to mention that Reid said that Senate Democrats didn't intend to "pick a fight" with Bush, but that Bush shouldn't "pick a fight with us, either." Good for him. Good old FoxNews, cherry-picking as usual and to irrelevance. They've lost 58% of their 25-54yr old viewership between October 2004 to April 2005. Probably just election drop-off but ouch!! nevertheless.
And you probably didn't get choicer quotes from Frist because after the brief photo-op and quick quote he was running the heck out of Dodge while his press secretary kept the door closed so that reporters couldn't pepper him with any more questions. Reid's comment won't cause much of a stir except with his most partisan opponents because what he said is pretty much true. For reaction from the religious reich, er, right, Focus on the Family’s James Dobson called it "a complete betrayal" and I doubt if Karl Rove is entirely happy with the outcome as this group of centrist may embolden others to act in a less partisan manner (god wouldn't that be great?). The far right elements of the GOP will get the more radical Brown and Owens but may have to settle for a more moderate replacement for Rhenquist, one less apt to turn over Roe v. Wade. The real winner in the GOP is McCain, basically sticking it to both Bush and Frist, a possible future opponent.

I have to say that watching Frist, rendered impotent and having to swallow it in public, even if it's for just a fleeting moment, was sheer pleasure.

Posted by: Marcus at May 24, 2005 04:48 AM

With Owens, Pryor, and Brown guaranteed to be elevated to the bench, I have a hard time seeing this as a victory for the Democrats. These three have been the recipients of some strong vituperation in public. Now the Democratic senators have agreed to sit on their hands during a vote.

I have a hard time seeing this as a victory for the Republicans, too. The fight has been postponed.

I don't see it as a victory for the Senate, either. These people were hired to argue - you know, the World's Greatest Deliberative Body, and all - and they have collectively agreed not to do so. In fact, you could say that they have set a precedent now that when a sticky issue arises, they have constructed a way not to deal with it.

Face it, this is what the Senate is for. I am sending letters to my two senators explaining that they have succeeded only in dodging the duty they were elected to perform.

Finally, they have deprived the nation (at least until a Supreme Court seat opens up) of the debate that helps crystallize the electorate.

So it's a bad deal for the Democrats, a bad deal for the Republicans, a bad deal for the governance of the country, and a bad deal for the voters.

But at least they have agreed to play nicely for now.

Posted by: Literally Retarded at May 24, 2005 06:49 AM

Senator McCain was just on CNN. When Bill Hemmer aksed him about Senator Reid's comments, McCain laughed and then stated that Senator Reid wasn't even in the room (i.e., had no role in the compromise) and that he, like extremists on the other side, is simply trying to spin it to his advantage.

He then went on to say that he's not worried about the language of "extreme circumstances" because it is "like child pornography" and "the 14" will know it when they see it.

My guess is that this deal strikes an uneasy truce between the 7 Democrats and the 7 Republicans. The Democrats are free to interpret "extreme circumstances" however they want, allowing them to resurrect the filibuster as they wish... But then the Republicans are also free to interpret "extreme circumstances" however they want-- meaning they can declare "extreme circumstances" violated and break the peace.

Looking below the surface, the Democrats need to retain 5 of their 7 in order to prevent cloture; the Republicans need just 2 of their 7 to implement the nuclear option.

My guess is that the Democrats have passed basic arithmetic and will not exercise "extreme circumstances," unless they are convinced that at least 3 of the 7 Republicans will agree with them. Otherwise, they lose everything.

Posted by: Bobby at May 24, 2005 08:16 AM

Without listening to the rhetoric on both sides, I think it appears to be a reasonable deal for the time being. Let's face it, the President really does need to consider "advice and consent" a little more strongly. Has he asked the Senate for any "advice" before he has asked for "consent" on these nominees?

Posted by: AR at May 24, 2005 08:24 AM

To me the more partisan posters on this topic don't really get it. I won't argue the facts; you have them pretty well analyzed. But the bigger picture is, while on the one hand the Senate is "hired" to be a great deliberative body and to serve as a brake on all forms of extremist/reactionary attempts at legislation, they are also "hired" to perform a legislative function. That includes passing good laws as well as stopping bad ones.

This compromise prevented what would have been a major delay of other important business, such as the budget. I for one am glad that for now at least, they can get back to work.

And if someone decides not to vote for someone based on this one issue, while it is their right, it also says quite alot about the voter.

Posted by: tim at May 24, 2005 09:01 AM

It seems to me the Democrats got nothing;the most problematic judges get confirmed while all the Dems get is a vague promise not to scuttle the veto. I don't see what the Democrats get out of this "compromise" other than being able to say they stopped the nuclear option. I don't know what the hell Dobson is talking about;he's a moron anyway or maybe he is calling it a betrayal when in secret he is happy.

Posted by: MWS at May 24, 2005 09:24 AM

So Tully is proved right once again. :-) I, for one, am glad that a deal was reached before the Senate had to "go to the mattresses"--literally.

I agree with Marcus; the big winner here is McCain. He accelerated W's slide into lame duck status, he dealt a crippling blow to Frist's hopes in '08, while at the same time he burnished his credentials as a moderate, assured the business lobby that the Senate would keep running at its usual pace, and showed the voters at large that at least one grown-up is in charge. Of course, the fundies are hopping mad, but the fundies would never vote for him anyway, so he hasn't lost anything there.

Well, LR, the fight's not over--the can's just been kicked down the road. It's going to be a long, hot summer.

Posted by: Blue Jean at May 24, 2005 09:34 AM

The centrist in me is glad it is over, but the cynic in me wonders whether it is over because the foolish obsession ran its course and served its purpose.

The responses of the more partisan here are indicative of unhappiness on the wings, so it's clear the spectacle has served red meat to the respective bases. It's too soon to tell what else it has done, but I notice that the shadow of Memorial Day is upon us, so there's a good chance that Congressmen reluctant to taint themselves with the odor of ANY substantive position on SS reform have succeeded in assuring that their hindquarters remain sheltered. Sheltered from any dangerous stand-taking beyond the forceful mouthing of vague platitudes.

To me, the grumbling in both wings is strong evidence of a good compromise. The GOP gets some of their guys, not all. A substantive rules change has been averted, and in so doing, the Senate has avoided setting a precedent under which congress would use their wide latitude in setting the rules to shift the balance of power away from the minority.

The most sensible thing I've heard said in the aftermath of this is that it might be wise for this President and future Presidents to talk and negotiate with both sides' congressional leaders before making nominations. It makes sense to me, especially from one who has promised to be a uniter, however I do not know anything of the history of this, or of the details of how much it has occurred during this or recently past administrations. Maybe someone else can enlighten me.

I am inclined to believe suggestions that Bush has leaned towards being more dictatorial in appointments than some other recent Presidents. I'm not saying that is necessarily bad in the abstract, especially when your parties runs both the house and the senate. But it can beget the sort of circumstances we have recently suffered through...

I can't help but notice that McCain comes out smelling like a rose if he's planning to run for President. He can run on "when the partisans ground things to a standstill, John McCain broke the stalemate and got the Senate back to business." Of course, he still has the problem of getting out of the primaries.

He will have to run very strong in the open primary states. Does anyone have a list of the open/closed primary policy on a state-by-state basis? I notice that Clarence Thomas took a rare jump to the fore in writing the opinion that preserved 2-party hegemony over the primary process in Oklahoma. I think expansion of open primaries should be a centrist issue, along with gerrymandering.

Posted by: bk at May 24, 2005 09:44 AM

The compromise seems to be that the Republicans won't eliminate the filibuster, and in return the Democrats promise not to use it unless they feel like it. That must have taken some negotiation.

Posted by: Joshua at May 24, 2005 10:15 AM

A lot of people are implying that McCain's motivation was to set himself up for a Presidential run--well, only if he's planning to run as an Inependent. This will be preceived by the Republican base as one more reason not to elect McCain as their candidate. Notice how all other possible 2008 candidates from both parites stayed away from this deal (unless Lieberman is planning another fruitless run). Clinton, Kerry, Santorum, Allen and, of course, Frist all made sure not to be associated with the deal.

Posted by: Alan at May 24, 2005 10:26 AM

Josh, that's very clever, but you're missing the point that the coalition of moderates who crafted the compromise have, through McCain, also pointed out that they'll be watching.

So the compromise is backed by the idea that the filibuster's ongoing use in these circumstances had better be rarer than it has been lately, or else the moderates will bolt and the nuke option can get passed. This group has enough critical mass to act as gatekeepers if they are willing to act as a block. I for one think John McCain may be sorely tempted to feather his nest further by replicating this action a couple more times, if he can. Even if the partisans are smart enough to keep him from being able to duplicate the feat so publicly again, he can now has enough of a threat to give him some kingmaker power. Don't you think this group of moderates is enjoying a taste of relevance?

Posted by: bk at May 24, 2005 10:27 AM

Saw that picture of the beds set up in the Strom Thurmond Room, eh? The thought of Senators packed in there like storm refugees in a mahogany-panelled shelter made me smile. "Daddy, Daddy, Cornyn's snoring and he had beans again for dinner! Can I change beds?"

William Myers and Henry Saad get "thrown under the bus," as the righties are phrasing it. Myers was a no-brainer. He has marvelous credentials as an attorney, minimal credentials as a judge, and a helluva lot of ethical baggage as a former lobbyist. Henry Saad also has thin credentials as a judge, having gone straight from private practice and law professor to the state appeals court in '94. He's also one of the Michigan 4, nominees blocked by the Michigan Senators for no better reason than because Stabenow and Levin are still pissed about two nominees blocked by the GOP during the Clinton years--one of them a cousin of Levin's. Saad, the least qualified of the four, gets to be the human sacrifice. McKeague and Griffin will get their votes now, as likely will Susan Neilson. Saad goes home.

It was never about District Court nominations. And to some extent it wasn't even really about the Appeals Court nominees. It's about future Supreme Court nominees. The Dems are down to two tools in the toolbox, public Borking and the filibuster. One they will always have, the other they couldn't risk throwing away before the big hand. So they bluffed, and bluffed high, hoping to "buy the pot." And they got called--and raised. Given the situation, they did quite well to split the pot and walk away. The Dem moderates were no dummies. Trying to bluff a losing hand through to a showdown when the other side knows they have you beat is Not Bright. Give up what you have to and save some chips for the next hand.

The GOP moderates did well too. The deal's Frist/Bush take-down gives the mods more leverage in the party and the Senate, and cuts one of the legs off of the bully pulpit the hard-core right has been using since the election. And they still have all their options if the Dems give it another go. But Frist can't pound the bully pulpit too hard now without first making sure that the mods are holding up that side of the podium....

The best part of the deal (IMHO) is that by establishing a very real centrist faction with traction in the Senate, real reforms of problem areas are now much more possible. The opposing leaderships have been put on notice that they can't just stonewall or ramrod, they have to deal. As they should. To me, That is a Very Good Thing indeed.

Posted by: Tully at May 24, 2005 10:28 AM

MWS,

It's not the Republicans who have made a "vague" promise not to scuttle the filibuster. Their promise is quite concrete.

we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.

To my eyes, that's pretty concrete. All 14 will oppose (vote against, at least) any rule changes to get rid the filibuster at least until January 2007 when the 110th Congress is sworn in.

The Democrats, on the other hand, don't commit to any specific action beyond allowing 3 of the 7 filibustered nominees to come to a vote, and to agree with this principle:

Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

This deal definitely hinges on trust among the 14, but as of now, I don't have a lot of trust in them. There are plenty of ways for the Democrats to characterize even nominees who have already been confirmed to the appellate court as "extreme". I've already seen here and elsewhere people who suggest that it's not the actual nominee but the accumulation of so many conservative nominees that made the current situation "extreme". One could make the argument that elevation of a Janice Rogers Brown or Priscilla Owens to the Supreme Court by itself constitutes "extreme" circumstances, even if she has already been deemed acceptable for the appellate court.

This is definitely a postponement of the fight, not an end to it. I do not believe that Senator Landrieu or Senator Byrd or most of the other Democrats will veer terribly far from the leadership of their party on future nominations, and it is clear from Senator Reid's immediate reaction where he stands on all this. So in a few months or a year we'll have another filibuster threat, Senators Graham and DeWine will say "they're breaking the deal" and agree to support the rule change, the Democrats will say "we're not breaking the deal this is an extreme nominee, and the President didn't consult with us enough". And we'll be right back where we are today.

I hope I'm wrong. I hope the personal experiences these 14 Senators gained in working together really have forged a bond of collegiality between them which will allow them to work together with less partian rancor than before. But I've seen the vile invective that Howard Dean, Senator Reid, Senator Byrd, and others routinely hurl at Republicans in general and the President in particular. And I don't see any signs of that stopping any time soon.

Posted by: PatHMV at May 24, 2005 10:39 AM

Pat,

I' don't understand why you're insisting that the GOP faction has made a concrete and binding promise that differs in nature from that made by the democrats.

I agree with you that the democrats can use the language about good faith and extreme circumstances (I forget the exact wording) as wiggle room, should they decide to use more filibusters. But surely as a lawyer you acknowledge that this wiggle room exists for both sides. The GOP moderates can characterize future fillibusters as a failure of good faith, as a re-neg, and they can decide to support the rule change because the democrats broke their end of the deal.

Neither side has made a promise written in stone without escape, IMO. To me, it looks like a simple and intentionally vague "we'll do this if you do that" deal. It implies that if one side doesn't hold up their end, the other side isn't bound to hold theirs either. It all hinges on the group of moderates to uphold the spirit of the intentionally vague "good faith" agreement.

What am I missing, in your view?

Posted by: bk at May 24, 2005 11:23 AM

Pat,

Maybe if the president didn't nominee people that the Democrats find vile, he wouldn't receive so much invective. Bush and the GOP knew damn well that these judges would bring blood to the water, far more than the other conservatives. They didn't HAVE to nominate the most extreme people they can find (and, yes, I'm sure we can argue about their actual records but they are seen as extreme). Someone who really wanted to "unite" the country would look for nominees that appeal to more than just the most conservative base of the party. Regardless of the promise not to do the nuclear option, by allowing the three most conservative judges to go through, the bar has been set so that it would be hard for the Democrats to attack any nominee who is even a bit less conservative. This is the way the Bush GOP compromises--give us what we want and we won't rape you tonight.

Personally, I am not a fan of the filibuster in general; I don't like the idea of the minority holding up the majority. But here you have a majority that thinks its 3% mandate gives it the right to ram through any lunatic it wants and anyone that doesn't like it can just lump it. I think the Senate and, in general, the American political system relies on a certain degree of trust and deference. Both sides have to play by the rules; on the majority side this means not taking actions designed to infuriate the minority. But Bush doesn't play this way--the right wing attitude is what's mine is mine and what's yours is immoral so we'll take it anyway.

As for the knocks on partisans that I read here, just because someone is partisan doesn't mean they are wrong. Since when did being partisan become a dirty word. I admit I have become a lot more partisan during the Bush administration (I almost voted for the guy in 2000). I see no indication that these people want or appreciate moderates or anything that would check the most conservative parts of their agenda. It's all red meat from this administration--Bush's bullshit about a uniter notwithstanding.

Sorry about the venting.

Posted by: MWS at May 24, 2005 11:39 AM

In general I see this as nothing more of a postponement of the battle. It's a practical compromise on the specific judges that were up this time.... and in that it is a good thing.

However, the real test will come when there is a Supreme Court vacancy. The Dem's who compromised (wisely) are saving thier ammunition for that...and so are the GOP moderates. If Bush nominates some-one who isn't completely rabid... and the Dems threaten fillibuster (which I expect they will if anyone to the right of Che Guevera gets the nod) then the GOP has great PR ammo... they can say "See we were willing to compromise but you are still abusing your power, you've left us no choice." It's also, obviously great PR for McCain if he can get through the primaries in '08 since the words "bi-partisan compromise" resonates well with swing voters.

Posted by: cengel at May 24, 2005 12:20 PM

It seems to me that greater clarity in the what the senate rules actually are, particularly from one Senate to the next, should be required by the Senate for its own purposes. The debate about how the rule change on the filibuster has to be done should not have existed in the first place. If there is a question about rules adopted by previous senates applying to the current senate, why not formally adopt or strike those rules at the start of each term? Does it take a simple majority to change the rules or not? That seems to me like a question that should not be up for debate.

Posted by: WHQ at May 24, 2005 12:43 PM

bk, what you're missing is that there's no way to prove bad faith on the part of any Democrat who reneges because the agreement explicitly makes it a private, subjective decision. The relevant language is "Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist." All any Democrat has to say is that in his or her own discretion and judgement it's an extraordinary circumstance.

Posted by: Joshua at May 24, 2005 02:29 PM

McCain does come out smelling like roses in this, even to hard-core Republicans, because Owens and Rogers Brown--their standard bearers--will receive a vote. I find it highly unlikely that he will be chastised for this in a GOP primary.

Posted by: AR at May 24, 2005 02:42 PM

Maybe if the president didn't nominee people that the Democrats find vile, he wouldn't receive so much invective.

And maybe if the Democrats didn't insist on finding so many of the President's nominees "vile," they wouldn't receive so much invective...around and around we go. The Dems can't expect Bush nominees to be liberal Democrats. Bush can't expect to nominate truly questionable candidates (like Myers) and ramrod 'em through uncontested.

The vote to end debate on Priscilla Owen today was 81-18. No matter how I cut those numbers, without even seeing the roll call I can see that over half of the Democratic Senators who were not among the seven who signed the agreement must have voted to end debate. I guess that means that at least 26 Democratic Senators (I don't know how Jeffords voted) didn't believe she was vile enough.

Posted by: Tully at May 24, 2005 03:03 PM

Abel,

I think you're misreading how this impacts McCain as a Republican. Owens and Rogers are not GOP "standard bearers". The fight was not about them, per se. It was about supporting the President's nominees, and laying the ground work for the Supreme Court battles. I don't think you'll find a single conservative blog out there who really likes this deal or thinks better of McCain for making it. To many, this was the final evidence of his "sell out".

And I'll add one more time that I would be happier with this deal if they had agreed to vote on all 7 filibustered nominees, even if as part of the deal the 7 Republicans agreed to vote against some of the 7. An up or down vote makes it much easier for the public to see where our elected officials stand. Having the significant votes on "cloture" helps politicians obfuscate what they really feel.

Posted by: PatHMV at May 24, 2005 03:06 PM

Joshua, I think you're being naive. Bad faith doesn't have to be proven, it only has to be declared. That's how politics is played. It's an agreement in spirit and the spirit exists in the 14 signatories, collectively.

If you think any of the GOP signees will hesitate to make a declaration of bad faith should they judge that the filibuster is being abused by the democrats, you just don't understand politics.

I might be wrong, maybe this is the sort of agreement where the letter of the rule is what's relevant, but I don't think that its power exists there. As far as I can tell, It's not a law, it's just an agreement, right? Am I wrong about this? Is this agreement binding in a legally enforceable sense that could be adjudicated or submitted to arbitration, or is it just a gentleperson's agreement whose power rests solely among the signatories?

Posted by: bk at May 24, 2005 03:18 PM

Brian,

You're right, it's not legally enforceable anywhere, it's merely a political agreement by the signatories. The only place where it will be "judged" is in the court of public opinion.

The concern many Republicans have with it is that historically the Democratic signers of this deal have stood shoulder to shoulder with their party leadership than the GOP signers of this deal. In the eyes of the public, it won't so much matter whether Frist says the Democrats are violating the deal because "extraordinary circumstances" don't exist, as whether John McCain or Lindsey Graham say so. If Ben Nelson and Mark Pryor are willing, in the future, to stand with John McCain and Lindsey Graham in calling shame on their own party for filibustering future nominees, then this deal will work out just fine. But I find it more likely that 48 Republicans, maybe 49 will believe that the Democrats are unjustly filibustering a future nominee, but the McCain, Graham, Snowe, etc. will decide they have personal qualms over that nominee, even if they would vote for them in an up or down vote. Then the GOP looks powerless despite having a majority, and the Senate is actually run by the Democrats, supported by a handful of moderate Republicans.

Posted by: PatHMV at May 24, 2005 03:33 PM

Damn!! for all our collective hand-wringing about the powerlessness of Centrists we sure have a hard time cheering a victory. We also seem to continue to be obsessed with "who won". If we can get on with the work of the Senate, then "we" won.
finally;

It's a great victory for compromise, certainly, and possibly compromise solely for compromise's sake. But I didn't hear anything which provided any logical reasons for any of the 14 deciding which judges would get up or down votes and which wouldn't.

Compromise and accomplishment is always (well almost always) a victory over bickering and inaction.

and "more" finally, since I'm from AZ and I voted for him I can say it "Hooray for John McCain" (I'm still not sure he's going to run for President but that's for another day)

Posted by: c3 at May 24, 2005 03:40 PM

Then the GOP looks powerless despite having a majority, and the Senate is actually run by the Democrats, supported by a handful of moderate Republicans.

Sounds like an oversell to me Pat, but then you're admitting that basic distrust of the moderate GOP 7 is rampant among the faithful.

If I were to edit your enry for clarity and accuracy (admittedly based on my own lens) I'd say this:

It looks like, at least on the issue of judicial nominees, the staunchly right portion of the GOP has to take into account the views of its more moderate party members.

I know many members of the GOP love to speak proudly of their big tent. Big tents don't march in lockstep, nor, I submit, should they.

Pat you must know the GOP much better than I. Honestly, how deep and widespread is the feeling of McCain as a Republican in Name Only, or RINO? I know some people who enjoy saying this, but invariably they are archconservatives. From my view, McCain has a variety of views which make him arguably a solid conservative, it's just that he's outspoken and a maverick, not prone to quietly following for the sake of unity when he disagrees with the party leadership. I can only speculate, but I've got to guess that there's some subset of the GOP(of indeterminate size), maybe pro-business financial conservatives that are socially laissez faire, who are quietly rooting for someone like McCain to emerge as a leader. After all, he got quite a bit of early support in 2000 before stealthy Bush supporters IMO sandbagged him. Am I WAY off in speculating that the people calling McCain a RINO, while vocal, are not necessarily an overwhelming majority? Anyone else have any thoughts on this?

Posted by: bk at May 24, 2005 04:05 PM

Tully,

The Democrats have let through-what is it--200 of Bush's nominees. There is only ten that they have any trouble with and these three especially. I don't see a whole lot of obstreperous behavior there. I certainly don't expect, and I don't think Democrats expect, Bush to nominate liberal judges. The issue is how far out are the judges he does nominate. Most of his nominees, while conservative, aren't looking to overturn established judicial doctrines or espousing weird philosophies. Some of these are.

Reasonable people can disagree over what is extremist. But, if you are trying to reach out, why would you nominate people that you know for certain are going to aggravate the other side? There are certainly other qualified conservative judges he could have nominated. One factor seems to be that Bush is playing the same kind of racial politics that the Democrats have played for so long--nominating extremely conservative women and Hispanics with the idea that it would be difficult for Democrats to vote against them. There are plenty of people he could have nominated that would not have caused anything like this stir; instead, he chose to consciously agitate by nominating people with at least arguably extremist agendas.

And why should Bush get a pass on judicial appointments just because he won the election? Why shouldn't there be some balance on the courts? The administrative agencies, such as the FTC where I work, are required to have a certain number of commissioners from both parties. I'm not advocating a strict law like this for judges, but what would be so wrong with Bush nominating some judges that wouldn't appall the Democrats? Instead, Bush treats the process like he does everything else--an opportunity to marginalize liberals and moderates by playing to his base.

Posted by: MWS at May 24, 2005 04:06 PM

MWS,

If the Democrats have already approved over 200 of Bush's nominees (only 53% or 64% of appellate nominees), then isn't that an indication that he's NOT packing the bench with solely right wing nominees? Or are you saying that the Democrats just held their nose while they voted for all of them? At the beginning of his term, President Bush even reappointed two appointments CLINTON had made after the election and before the inauguration. So I think your own evidence shows he has not appointed only right-wing fire-breathers.

Brian,

There's a continual battle within the GOP over the "RINOs" and the social conservatives and the libertarians and the religious right. But one of the issues that has historically united the party has been the judiciary. Textualists or constructionalist judges tend to be pro-business as well as anti-Roe. The religious/social side doesn't like Roe and Lawrence, the business/libertarian side doesn't care for expansive recognition of affirmative action quotas and other race-aware government practices. So undercutting the President on judicial nominees has the potential to offend a bunch of the party.

The ones calling McCain a RINO (and I really hate that term, as an often contrarian Republican myself) are the hard core party faithful, the ones who give early money, the ones who volunteer for phone banks and envelope stuffing, etc. McCain's previous "maverick" exploits have not generally cut across all part lines at once, rather they have pleased some while angering others. But there is no "compromise" wing of the party. Also, I think the blogs will play a larger and larger role in the next election, and most blogs of all stripes dislike McCain because of the efforts of the FEC to impose McCain-Feingold on internet political activity.

Posted by: PatHMV at May 24, 2005 04:56 PM

I think expansion of open primaries should be a centrist issue,...

Reform of the weeding out process should not be the aim of centrists. Eliminating it entirely should be. We should aim to change the rules of the general election to allow a candidate to have a meaningful, non-spoiler role without winning a major party's primary.

Posted by: Scott Smith at May 24, 2005 05:23 PM

Pat,

I never said Bush was appointing ONLY far right judges. Most of his selections were apparently at least tolerable to Democrats although I'm sure they had to swallow hard on some. But that doesn't mean that the Democrats now have to give him a pass when he does nominate true red meat conservatives. My point was that he had nominated some judges that Democrats found simply appalling. I mean, what if Clinton had nominated (as i assume he did)nominally liberal judges that the GOP was willing to accept, but that then he decided to nominate, say Ramsey Clark to appease the left wing of the party. Wouldn't you say the Republicans would have a right to complain about that? And wouldn't that have been a foolish thing for Clinton to do, knowing how that would alientate Republicans? My point was, what do you expect is going to happen if you push the outside of the envelope, if you consciously nominate someone without regard to the reaction from the other side? Bush could have nominated any number of conservative judges that the Democrats would have considered ok.

Posted by: MWS at May 24, 2005 05:23 PM

Marc,

Did I say at any point, any where, any time, that Bush should get a pass on judicial appointees? Did I not just say, in the post you're replying to:

Bush can't expect to nominate truly questionable candidates (like Myers) and ramrod 'em through uncontested.

And again with the District Court numbers! We KNOW it's not about District Court nominees. We KNOW that the holds and burials in both the Clinton and Bush admins have been increasingly political in nature. Heck, it's barely even about Circuit Court nominees. If Bush's nominees are all so ideological, why are the Appeals Court nominees the only ones being filibustered? Does Democratic "principle" only apply at that level? Not to District Court nominees? I've found the touting of District Court numbers to obfuscate the the Appeals Court numbers to have a bit of a flaw in it that way.

I have no problems at all with open discussions about the nominees, though I would prefer them without the many lies that have been told about some of them (Brown pops immediately to mind). Sure, let's discuss how close or from competent they are!

Why shouldn't there be some balance on the courts?

"Balance" in the judiciary? Via some kind of affirmative action? One left-winger for every right-winger, regardless of their ABA ratings and record of overturned decisions? I believe that's why the Senate has an "advice and consent" role in the first place, no? And why we have elections? Why those are lifetime appointments, so that there will always be long-term continuity to counter-act the flavor-of-the-administration tendency?

The core of your argument seems to be that these judges were well-qualified but would rule based on ideology rather than law (which seems a bit contradictory). But you keep arguing about Bush rather than specifics of the individual nominees. I have trouble taking that line seriously, because it's based on "anti-Bush" partisanship rather than addressing the nominees thmselves. It's the "Bush nominated them so they must be extremist, so we'll argue Bush rather than the nominees" argument. Self-referential, and dodges the core of what we should look at, which is not what party they are or whether they're personally liberals or conservatives. Are they good judges who know and follow the law and the Constitution? Or do they ignore the law and the Constitution to "legislate from the bench?"

Gimme the first sort every time, and I don't give a hoot which way they personally lean. Making the law is the legislature's job.

Posted by: Tully at May 24, 2005 05:25 PM

Lol, Tully, on the mattress story. “If you keep complaining, Ricky, I’m going to
make you sleep in the cloakroom next to Norm. You know how much he snores!”
“Yikes! I’ll be good.”

What T probably knows--but many out there may not---is that “going to the mattresses” is an old Mafia phrase for “going to war”. In “The Godfather” after the old Don is shot, Sonny talks about “going to the mattresses”, i.e. establishing “safe” apartments with beds, refrigerators and guns, where the street soldiers can rest between battles.

It reminds me of that old line in “Married To The Mob”, where the Feds pressure the heroine, Angela, to wear a wire so they can trap mob boss “Tony the Tiger”. The cop tells her all the stuff that will come down if she doesn’t cooperate; her friend and employer will be deported, her son may be taken away from her, etc. Angela bursts out “My God! You’re just like the Mob! There’s no difference!”
To which the cop replies “Yes, ma’am, there’s a big difference. The Mob is run by vicious, murdering psychopaths. We work for the United States Goverenment.” ;-)

I’m sure what Tully described was running through Reid’s head last night. To a certain extent, Reid comes off as a winner, because he was dealing from a position of weakness, rather than a position of strength. The fact that he got a deal--any deal--makes his position more secure than it was six months ago.

McCain may or may not run in ‘08, but he doesn’t need to; he’s already got what he wants. For the moment, he’s de facto leader of the Senate, plus he’s collected a pile of chips from Senators who wanted to preserve their Senate power without openly going against their own WH.

As Kenny Rogers sang "You gotta know when to walk away...and know when to run." Frist is running now, but not for President, I believe. ;-)

Posted by: Blue Jean at May 24, 2005 09:14 PM

Great. Now I have a clip of Abe Vigoda (as Wiliam Myers) talking to Robert Duvall (as John McCain) running through my head....

"John, can you get me off the hook, for old time's sake?"

"Can't do it, William."

And Chafee and Byrd led him to the car while McCain turns and walks back into the Capital building....

Posted by: Tully at May 24, 2005 10:33 PM

If you think McCain is enjoying himself, doing what he thinks is right while exacting some revenge on the Bushies and the far right Senate Stepford faction in the process, I wouldn't disagree. It fits his style too well.

Posted by: Tully at May 24, 2005 10:39 PM

Lol, Tully! At least I didn't say "Frist sleeps with the fishes." Not yet, anyway...:-)

Posted by: Blue Jean at May 24, 2005 11:18 PM

Ok, I'm feeling left out of all the filibuster movie analogies (first it was Revenge of the Sith, now the Godfather), so I'm jumping in with my own:

Picture the GOP as the Klingons. They are all ready to take over the Senate space station, maybe with Democratic Senator Nelson as the undercover Klingon hiding among the Democratic population of the station. Things are going swell for the Klingons, they're about to grab total control of the station, and then POOF! Up pop these tribbles... to everybody else, they look like warm, fuzzy, friendly creatures. But to the Republicans, those tribbles look like... John McCain! And because of those warm fuzzy creatures, their takeover of the Senate is thwarted.

Posted by: PatHMV at May 25, 2005 12:18 AM

All in all the real moderates and the country win.
Did hear one wag say that if the Senate had a secret ballot half the Republicans would vote to keep the filibuster.
I do hope others will lend their voices to this group although I doubt much of it will be done publicly. Nor will we see any real investigation of the 8.8 billions unaccounted for by the coalition provisional authority, we won't see a Truman like commission that dealt with war profiteering nor are we likely to see any major dropoffs in pork barrel spending or smaller, less intrusive government. Business as usual and just so that no one REALLY notices we got the Jackson distraction and the Idol millions to make sure the rest of the sheep stay asleep.
National ID card anyone?

Posted by: Marcus at May 25, 2005 12:26 AM

Lol, Pat! So as Scotty said, McCain will be no tribble at all?

Posted by: Blue Jean at May 25, 2005 09:26 AM

Jean... GROAAAANNNNNNNNN

Posted by: PatHMV at May 25, 2005 12:09 PM

Tully,

I am not arguing that judges will only rule based on ideology. What I am saying is that their ideology and background will influence their jurisprudence, whether they are liberal or conservative. That has nothing to do with whether they are qualified--I'm not sure what qualified means in terms of an appellate judge. I assume that these judges are qualified in the sense that they can write a coherent opinion and are smart. That's not the point; the question is whether their judicial (and political) philosophy inclines them to take judicial positions that are extreme relative to existing precedent. I certainly have not examined these judges' opinions in detail, but from everything I know, their opinions have been relatively extreme. This is not true of all of Bush's judicial nominees, most of whom have been confirmed. However, these particular judges seem to be different.

Yes, I admit I do not trust Bush because, IMO, he has shown a willingness to push through what I consider extremist policies and an unwillingness to compromise substantively with the opposition. Regardless of how "qualified" these judges were, they were clearly people that raised red flags among Democrats, unlike most of Bush's other judicial nominees. I'm saying that if Bush really wanted to reach out and compromise, he would avoid nominating people that were clearly beyond the pale for Democrats.

As for balance, I'm not suggesting affirmative action for judges. What I am suggesting is that it is dangerous to stack the bench with judges of one particular judicial philosophy. Typically, the balance is set by the need for the president to get confirmation through the Senate. Today, however, that check is out of whack because Republicans--and the most conservative Republicans--control both the Executive and the Congress. I hope that the compromise suggests the ability of Republican moderates to wrest some degree of influence from the right-wingers. But that requires some interest on the part of the president in compromising as well and I have seen nothing that suggests he is willing to do that.

Posted by: MWS at May 25, 2005 12:31 PM

MWS,

In all fairness to Bush, if renominating some of Clintons nominees (i.e. Roger Gregory) doesn't constitute a spirit of compromise in your book then I'm not sure what would?

Problem is when Bush actualy does compromise on something he almost never gets any credit for it.

Posted by: cengel at May 25, 2005 03:06 PM

Marc,

If, as you claim, the Democrats have approved the vast majority of President Bush's judicial appointments because their opinions are not extreme, isn't that proof that he is in fact NOT trying to "stack" the court with ideologues? You cannot logically have it both ways. Either the Democrats have been unprecedentedly obstructionist in confirmation of the appellate court judicial nominations or they have confirmed a huge number of uncontroversial nominees. Either a large number have been confirmed or they haven't been confirmed.

If you want to claim that the President is trying to "stack" the court with the "extremists" the Democrats refuse to bring to a vote, then you must acknowledge the point Tully and I keep making, which is that among circuit court judges, the Democrats have obstructed an uprecedentedly large number of nominees. If, on the other hand, you want to claim that the Democrats have only withheld confirmation of a very small percentage of nominees, then you must acknowledge that the vast majority of President Bush's nominees have been uncontroversial, because the Democrats confirmed them. You can make either argument, just pick one of them at a time, please.

And if you're going to argue this so passionately, you really should not just uncritically accept the Democrats' contention that these are "extremist." You basically appear to assume that President Bush has nefarious motives for the appointments, but the Democrats are calling them extreme only because they really, truly are. You are taking their claim on faith, by your own admission. In that light, you might want to take a look at, for instance, this column by Nat Hentoff describing the slanderous and untrue attacks made on Justice Janice Rogers Brown by the New York Times, the NAACP, and others. The column also talks a bit about slanders against others. Remember Judge Charles Pickering, the one who got the "slap-in-the-face" recess appointment to the Fifth Circuit? Nasty rascist, right? Lenient sentence on the cross-burner, right? Extremist to the wall, according to those Democrats you have such faith in. Did you know that he, a white man, in Mississippi in the 1970s sent his own children to the predominantly-black public schools? That he once testified at great personal peril, against a KKK leader? Nat Hentoff actually did some reporting and found out these basic facts.

Before you keep jumping on the Democratic band wagon, please look at some actual facts.

Posted by: PatHMV at May 25, 2005 04:09 PM

Yeah, I read Hentoff's column; he does say that Brown has been lied about, but even he admits that he wouldn't vote for her because of her stance on worker's rights. I certainly wouldn't vote for anyone who thinks, as she does, that the New Deal is "socialist" and ought to be repealed.

Everyone who's read my comments knows how I feel about W, but to a certain extent his hand was forced. Marc wonders why he keeps sending back these seven judges he knows the Dems find unacceptable, instead of just withdrawing their names, but if W's party had lost seats in the last two elections, he probably would have pulled in his horns. Mind you, I think the GOP gained seats mostly due to 9/11 and DeLay's gerrymandering, but the fundies wouldn't have accepted any such excuse.

Thanks for the groan, though, Pat. Most people just throw things at me. ;-)

By the way, few of us lefties view you conservative GOPers as Klingons.

We think of you as the Borg. ;-)

Posted by: Blue Jean at May 25, 2005 10:55 PM

Good... so you understand that resistance is futile.

Instead of "7 of 9", is McCain "8 of 14"? And does that make Zell Miller Locutus of Borg?

Posted by: PatHMV at May 25, 2005 11:03 PM

Lol, Pat! Frankly, I'm beginning to think Hillary is "7 of 44". I'd give that title to Zell, but I REALLY don't want to see him in a flesh colored body stocking. (Shivers violently) ;-)

Posted by: Blue Jean at May 27, 2005 04:43 AM

If, as you claim, the Democrats have approved the vast majority of President Bush's judicial appointments because their opinions are not extreme, isn't that proof that he is in fact NOT trying to "stack" the court with ideologues?

I think the example of William Steele should demonstrate what is at work. In 2001, Bush nominated him to the 11th Circuit Appeals Court, quickly came under fire from civil rights groups and was withdrawn. Subsequently, he was renominated to the Southern District Court of Alabama and quickly confirmed. What it shows is that the Democrats are giving wider latitude to distict court nominees than to appellate court nominees, almost to the point of anything goes at the district court level.

As for the current crop of circuit court nominees, how can anyone not say the someone who urges judges to be "audacious enough to invoke higher law," a la Janice Rogers Brown, is not egregious? That is, unless you believe that the judiciary should be used as a tool to advance that higher law.

As for the advice part of "advice and consent," there are some reasonably established norms, albeit built over the course of only 5 decades as opposed to 2 centuries, defining parameters for selecting judicial nominees as related in this article in The New Republic

There is no formal requirement for how the president nominates district court nominees; nevertheless, there are traditional checks and balances that have evolved over the last 50 years, practices that are being either rewritten or discarded by the administration. These include ignoring state judicial nominating committees, rejecting American Bar Association ratings, placing Justice Department political appointees in positions related to judicial selection, and refusing to cooperate with home-state senators. Says one former Justice staffer, "They have systematically ignored bipartisan commissions [and] ignored traditions of consultation that were in place when we got there and have been in place for years in order to make these ideological appointments and political rewards for jobs well done."

There again, our current administration has shown no respect for norms, as opposed to rules, whatever.

Posted by: Scott Smith at May 27, 2005 09:45 AM

Placed political appointees in positions related to judicial selection? Heaven forbid! (oh, wait, there I go calling out to a higher power) Political appointees helping the President to make political decisions, what is the world coming to?

Interesting that you note the ABA ratings. As far as I know, not one of the filibustered nominees have been rated unqualified by the ABA. I seem to recall that Owens and Brown are ranked as "highly qualified".

You do strengthen the point Tully and I have made, repeatedly. What's been done with district court nominees is very different from what's been done with circuit court nominees. Tossing in the district court nominees to show how "accomodating" the Dems have been to the President with judges is just mudding the water and distracting from the real debate.

I've said it before and I will say it again. The Court itself started to involve itself in ideological decisions, with the support and urging of much of the left. Once the Court started doing that, it was and is entirely appropriate for the President to take ideology into account when making his nominations. If and when the Court stops basing its decisions on ideology, we can go back to appointing judges on a non-ideological basis.

Posted by: PatHMV at May 27, 2005 11:23 AM

And what about disregard for the selections of state nominating commissions and home state senators? If you're going to challenge that, point to an instance where Clinton, or any other prior president in the modern era, was given a recommendation from one or both sources and overrode it.

What's really at stake here is that Bush seeing that he does not have the popular mandate to repeal laws like minimum wage laws, the Environmental Protection Act, various components of the welfare state, etc. wants to effect a backdoor repeal by filling the courts with judges who will declare those laws unconstitutional. Of course the claim is that they just don't expand personal rights to privacy beyond what the Constitution explicitly states.

Posted by: Scott Smith at May 27, 2005 01:33 PM