Thursday, May 19, 2005

I say nuclear, you say nucular: Let's call the whole thing off!

So the filibuster battle begins. More to the point, the battle over Bush's more extreme judicial nominees begins. The Democrats threaten to filibuster, the Republicans threaten to go nuclear, and the Democrats may shut down the Senate. Senate Majority Leader Bill Frist argues that Bush's nominees "deserve an up-or-down vote on [the] floor," meaning a simple majority vote that his party would win, and that Democrats are engaging in "unprecedented" obstructionism. Meanwhile, Senate Judiciary Committee Chairman Arlen Specter claims that this obstructionism is revenge for Republican opposition to some of Clinton's more objectionable nominees -- though he at least has the good sense to blame both parties for the filibuster escalation of the past two decades.

But let's consider the facts, not the spurious claims someone like Frist (who had the gall to diagnose Terri Schiavo by video and who is now more insanely partisan than ever): The Democrats have only filibustered ten of Bush's 229 judicial nominees. Of those ten, seven have been renominated. That means that 219 of Bush's nominees were acceptable enough to Democrats that they declined to filibuster -- meaning that they essentially permitted 219 of Bush's 229 nominees to be confirmed. Surely Democrats didn't like all 219 of those nominees -- most of them, now confirmed federal judges, are well to the right of most Democrats -- but they did not block them through parliamentary procedure. So despite Frist's exaggerated rhetoric, backed up by many in his caucus, this is all about a small majority of Bush's nominees. Which means that something must distinguish those ten -- now seven -- from the rest. It can't be judicial conservatism -- most of them are conservative, which is why Bush nominated them in the first place. No, what distinguishes these seven, the Odious Seven, is their extremism. Republicans are trying to turn the filibuster battle into a debate over procedure, deftly labelling Democrats as obstructionists, but what matters here are the nominees themselves. Democrats can stand up and defend the filibuster, even if it was once used by segregationists to block civil rights legislation, but they should be focusing their attention, not to mention the attention of the media, on the nominees themselves. (See a previous post here.)

One of those nominees is Priscilla Owen, a justice on the Texas Supreme Court. What makes her so extreme that Democrats would filibuster her nomination? For more on this, see this 2002 piece by Jason Zengerle in The New Republic. Essentially, Owen is "an anti-abortion zealot" whose views place her on the far right of the already right-wing Texas Supreme Court (the nine justices are all Republicans), and it seems that she has been nominated precisely because of her anti-abortion zealotry. Of course, most of Bush's nominees are pro-life, which means that Democrats have already acquiesced to the confirmation of pro-life nominees, but Owen's extremism sets her apart. Indeed, Zengerle notes that "her anti-abortion fervor distinguished her from even her conservative colleagues," often in parental-notification cases where she was the lone dissenter. In one such case, Attorney General Alberto Gonzales, then White House counsel, referred to her position as an "unconscionable act of judicial activism".

(Don't Republicans and conservatives claim to be against judicial activism? Isn't that one of Frist's causes these days, kissing up to the evangelical right? Well, it seems to be allowed when it's activism by the right, of the right, and for the right. Can you say... hypocrisy?)

The other six nominees are very much like Owen, which is why they, too, may soon face the filibuster -- or pass through the nuclear winter that could soon envelop the Senate. Right now, the debate is about the filibuster, and I'm sure the Republicans want to keep it that way. But the Democrats need to expose these nominees for what they are and to face the Republicans on the battlefield of ideas. Yes, they should filibuster. Yes, they should defend the filibuster. But, in the end, the votes will come down to the nominees themselves. Years from now, when they're sitting on the federal benches, the matter of how they were confirmed will be far less important than the damage they've done to America's institutions, public and private, through their right-wing activism. They need to be blocked. If that ultimately fails, Democrats need to take their case to the American people, who may just reject the encroaching extremism of the Republican Party.

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  • Just stumbled upon your blog.

    Wanted to let you know that I enjoy it.


    By Blogger Sarah the Penguin, at 2:31 AM  

  • Frankly, I think it's time to stop the charade that judicial nominees should not be evaluated based upon their ideology. Why shouldn't the Senate be able to examine their judicial philosophy and political ideology? In fact, they always have been even if the reasons given are dressed up to disguise the fact. And I think that's the way it should be. I happen to think the president should be given broad discretion in appointing his or her cabinet, advisers, etc. It's the president's administation and he has the right, IMO, to have whomever he wants in it (within some limitations of course). If people dislike the policy, they can replace the president at the next election.

    However, judicial nominees are entirely different. They influence people's lives for years or decades. I don't think a president should have the ability to set the federal judiciary far in to the future without some searching examination by the Senate of who he is appointing simply because he won one election. And I would say this with respect to Democrats as well as Republicans.

    We need to disabuse ourselves of the notion that it's simply a matter of whether the nominee is "qualified." That's a meaningless term--I assume most judicial nominees can write a decent opinion. The fact is, at the level of constitutional or statutory interpretation, a judge's background and ideology inevitably influences his or her jurisprudence. So it's simply disingenous to argue that judges just "interpret" the constitution. The act of interpretation, like it or not, is a political act--it's not like interpreting a contract.

    Moreover, to the extent that the Senate owes some deference to the president's nominess, IMO, this implicitly assumes a sort of contract between the president and the Senate, ie, you go easy on the nominess and I won't nominate nut jobs or people that you can't easily swallow. In the case of the 10 nominees in question, Bush clearly violated this "pact." He nominated people that he certainly knew were off the scale as far as the Democrats were concerned. If you are going to keep the judicial nominating process "above politics" it requires that both sides play by the rules.

    By Anonymous Anonymous, at 10:13 AM  

  • Thanks for the kind words, Sarah. Please make sure to stop by again, and feel free to send me some more feedback, either here in the comment section or to my e-mail.

    By Blogger Michael J.W. Stickings, at 12:11 PM  

  • Marc,

    I completely agree with your assessment of the situation. It is very much a charade to focus on a nominee's qualifications (however understood). The focus should be on a nominee's judicial record -- that is, his or her opinions, not to mention his or her fundamental ideas. Put another way, it should be on a nominee's political philosophy.

    And I, too, say this without partisanship. I don't want Bush to stack the federal benches any more than I wanted Clinton to. The GOP leadership is claiming that Bush should have the right -- indeed, that it is his presidential prerogative -- to nominate and have confirmed whomever he pleases. But this would mean an astonishing excess of executive power. After all, it isn't just about placing a few judges on the federal benches (and the Supreme Corut). As you say, Marc, it's about determining the course of the federal judiciary (and, by extension, of much of American life) for years, if not generations, to come. Once confirmed, after all, judges are there for good. They cannot be voted out -- this makes the confirmation process for judges all the more important, much more so than, say, for a cabinet appointee (or for U.N. ambassador, however much I dislike Bolton).

    This is precisely why the Framers of the Constitution handed confirmation powers to a separate branch of government. And it's precisely why the Senate, especially when ruled by the president's party, must not simply confirm nominees because the president says so. The Senate must conduct reviews with all due diligence, and the minority must be able, in a case like this, to stand up against the union of the executive and the legislative majority.

    Finally, I agree that Bush has violated the "pact". Democrats have gone along with the vast majority of his nominees, but the more extreme ones deserve extra scrutiny. It's only because they're extreme that Democrats are threatening the filibuster in the first place.

    By Blogger Michael J.W. Stickings, at 12:31 PM  

  • Do you think that the government would be more interested in supreme court nominees would be if we allowed Paula, Simon, and Randy to critique them first?

    By Anonymous Anonymous, at 11:28 PM  

  • And perhaps Paula would have an affair with a would-be justice? And then ABC could expose it as one of the biggest and most controversial stories of the year?

    Yup, bring it on.

    Supreme Court Idol. It's a sure-fire winner.

    By Blogger Michael J.W. Stickings, at 9:40 PM  

  • By Blogger söve, at 7:09 AM  

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