April 18, 2005

One House Is Enough

You know, Ronald Reagan was able to effect great changes in the makeup and direction of the federal judiciary without demanding that the Senate change its procedures to help him do it.

Clearly, George W. Bush is no Ronald Reagan.

The controversy over how to limit Senate debate over judicial nominations shows off some of its protagonists' least attractive characteristics. The nominations being blocked by Senate Democrats are a small minority of those Bush has submitted since becoming President, and none of the nominees are exactly titans of the American bar. The likelihood that the future course of our history will depend on whether Priscilla Owen goes on the 5th Circuit Court of Appeals is pretty small.

But Bush wants what he wants, and what he wants is vital because he wants it. He doesn't want to have to argue about it, and he doesn't care what else has to change for him to get his way. A privileged upbringing and a devoted entourage can do this to one's outlook on life. Deep into the era of the Me Generation Presidency, lots of Americans have come to accept this kind of spoiled-child behavior as normal. Many of them even identify it with strong leadership.

Most Republican Senators certainly do. Two groups of GOP Senators are worthy of comment in this regard. Twelve Republican Senators are over the age of 70, and four more are within a couple of years of that age. Even subtracting a few men unusually vigorous for their age and who take being a Senator seriously (e.g. McCain, Lugar, Warner) this leaves quite a few elderly Senators who might be glad for anything that could reduce the time and effort they have to put into their job.

Many Republican Senators are also former Congressmen who long for the dull-witted, bovine majoritarianism of the House of Representatives. They enjoy the larger offices and longer terms that come with the Senate; they find not having to work so hard for campaign funds and media exposure gratifying. But the Burrs, Vitters and Thunes recently arrived on the north side of the Capitol are not so interested in actually being Senators. They were happy as Congressmen, content to be consulted occasionally on issues they happened to know something about but otherwise herded passively by their leadership and the White House.

They do not want independence; they are not ambitious to ever be powers on the Hill in their own right. Most of them have no detailed views about the federal judiciary, or indeed about many other important issues. They want only to do whatever their President wants, provided what he wants is also supported by a suitable mix of interest groups. We haven't seen a group of grown men so eager to be ordered about since the Democratic caucuses in Iowa last year.

You can see how the concept of unlimited debate would lack appeal for people dependent on staff and lobbyists to write their statements for them. Inconveniently, though, unlimited debate is central to the Senate's role in our government. We need a House of Representatives, I guess (I concede this point with some reluctance), but there's no point in having two of them. There are ways of bringing debate in the Senate to a halt, by the approval of supermajorities for cloture motions of course but also by not insisting on nominations and legislation violently obnoxious to a large minority of the Senate.

That means that the President doesn't always get everything he asks for, something Presidents in this country have been living with for a very long time. This particular President would have been better off by far not picking fights over lower court nominations and demanding that generations of Senate practice be changed just to accommodate him. The next Supreme Court nomination was always going to be controversial, but it could have presented the country with the prospect of a principled conservative jurist opposed by entrenched liberal interest groups and their kept Democratic Senators. No one Bush nominates for the Court now is likely to occupy such high ground; he (or she) will appear merely as the instrument of Bush's zeal to use the courts to impose his will.

As for the Senate, there are still a number of Republican Senators with connections to an earlier era when Republicans interested in reshaping the judiciary knew how to do it without manufacturing a crisis. Some of them have not declared themselves on whether or not they will reject the so-called "nuclear option" Sen. Frist has been bullied into considering; they include Senators Cochran, Domenici, and Dole. Frist may only be using the Senate as a stepping stone to higher office, but they have more invested in the institution than he does. If he is so unwise as to force a vote on making Senate procedures more like those of the House they ought to shoot him down.

Posted by at April 18, 2005 04:12 AM | TrackBack (5)

You started off with an absolutely incorrect statement:
"The nominations being blocked by Senate Democrats are a small minority of those Bush has submitted since becoming President..."

The hour is late and my brain has already begun to fuzz out, so let me just refer you to a thorough discussion of the nomination/confirmation numbers since Truman at http://dalythoughts.com/index.php?p=2983

The analysis seems to be pretty thorough and the discussion comments are also good. The bottom line is that in the 107th Congress (Dem controlled) 28% of Bush's nominees were confirmed; in the 108th (Rep controlled) 53% were confirmed. These are significantly lower numbers than any other President since Truman and mark the low point in a trend, which has spiralled downwards since Reagan.

Obstructionism does not appear to be the province of the Democrats alone, but they do seem to have developed a higher degree of proficiency than their GOP counterparts. Given the degree of partisanship and obstructionism that has developed, I see it as only reasonable that procedural rules be modified to promote legitimate debate and decision. Defending obstruction and the stifling of real debate strikes me as partisan chicanery.

Posted by: Dave at April 18, 2005 04:30 AM | Permalink to this comment Permalink

Appalingly ill informed. Pedestrian in the extreme. Not to put to fine a point on it, utter rubbish,

Posted by: John Reagan at April 18, 2005 07:13 AM | Permalink to this comment Permalink

I miss Greg D. When will he be back for this blog?

Posted by: john marzan at April 18, 2005 08:16 AM | Permalink to this comment Permalink


I have to admit that I pretty much share the opinion of preceding commenters that this is a poor post. However, since they rather harshly take you to task, I shan't pile on.

Yet, if I may quote an ancient wise man: What does not destroy you, makes you stronger.

Aside from this one post, I think you've done a fine job. In fact, I've kind of been waiting for you to break loose and write like you own the damn thing!
(Which I suppose you did today, to our evident chagrin.)

But that's OK! Keep 'em comin'! Don't let a handful of malcontents dissuade you. Gird up your loins and slay your enemies.

If I may make a suggestion or two: if you feel that the reaction to this post is mistaken, then push back. Criticize the critics. And secondly, if it is at all possible, I think you would help yourself if you posted more often than you have hitherto. Throw as many ideas out there as you can; some will be poorly received, others well-acclaimed.

Again, I mean it when I say you've done a terrific job filling in for Greg. My sincere hope is that you and Greg will team-blog BD from here on out.

Posted by: Arthur Ian Knight at April 18, 2005 10:28 AM | Permalink to this comment Permalink

I'll pile on: this post was offensive. "This particular President would have been better off by far not picking fights over lower court nominations and demanding that generations of Senate practice be changed just to accommodate him.

Hugh Hewitt is covering this issue as one that is SO important, a Rep defection justifies voting Dem to defeat the mock-Rep. Hugh points out that in the 20th Century, the filibuster was only used once -- but with Bush, the Dems have used it 20 times on 10 nominees.

The Dems created this crisis by using an "extraordinary" power as an "ordinary" political manuever. So ditching the power will, actually, return to a situation of having the President's nominees be voted up or down in the Senate, as the Constitution provides. It's the Dems who, again, are acting like spoiled brats, as usual.

You also totally fail to mention the underlying issue -- the Dems have an anti-Christian litmus test, any and every jurist who believes in God, and who is against abortion, is disqualified by the Dem "religious" secularism.

Terri was executed by starvation as the morals of the secularists were imposed on her, by judicial order. They are not unrelated, but your long post misses many of the dots.

Posted by: Tom Grey - Liberty Dad at April 18, 2005 11:07 AM | Permalink to this comment Permalink

No offense, but if you want to blog at this address you ought to be adhering to much higher standards. Your previous posts were pedestrian, this one is just awfully done.

Posted by: Dundare at April 18, 2005 01:38 PM | Permalink to this comment Permalink

The Democrats are in a position where fundraising demands that they filibuster judges from time to time. Pryor's stance in the Schiavo mess -- no vote for the feeding tube -- indicates the charges that he could not overlook his religious faith in making decisions were overblown. The charges of racism against Pickering, as revealed a number of years ago in our liberal hometown paper, the Atlanta Journal-Constitution, were bunk. Nevertheless, the Democrats feel comfortable resisting Bush's "remaking" of the courts by using the filibuster.

You suggest there are other ways to remake the courts. What are they?

Posted by: Appalled Moderate at April 18, 2005 02:07 PM | Permalink to this comment Permalink

"bovine majoritarianism" indeed.

Posted by: praktike at April 18, 2005 03:39 PM | Permalink to this comment Permalink

You know, Ronald Reagan was able to effect great changes in the makeup and direction of the federal judiciary without demanding that the Senate change its procedures to help him do it.

And you should know as well as anyone that in the 80s, while the rate of Congressional delaying of judges had already started to increased, that judifical nominations were not filibustered. (And that in the 80s, the filibuster itself had been recently reduced from a 2/3rd to 3/5ths necessary for cloture.) Over the last 20-25 years, the willingness of the opposition party to oppose presidential selections has steadily grown under every president, and the rejection and delaying rates have steadily climbed. The current Democrats are the first to filibuster, however. (The Republicans had a majority for much of Clinton's terms, so filibustering was not necessary when they could defeat nominees via a straight up or down vote. Even so, they did not filibuster judges in the first two years of Clinton's term.)

It is ridiculous to ignore the escalation of tactics.

Posted by: John Thacker at April 18, 2005 04:56 PM | Permalink to this comment Permalink

I'm afraid that I agree w/ most of the posts - this wasn't very well thought through. I do think though that the Republicans are making a bigger deal out of this than they would under normal circumstances to pave the way for an easier Supreme Court nomination. Having highlighted the Dems' reluctance to allow an up or down vote of a nominee, if the Dems show similar behavior w/ a SC nominee, they'll be trashed. I think the Republicans have trapped the Dems on this issue. Look for the press to try to bail them out.

Posted by: Chris at April 18, 2005 05:02 PM | Permalink to this comment Permalink

Dave's numbers are selective; they only refer to circuit court judges, whereas including all federal appointments would show a much higher % of Bush confirmations.

The negative commenters, btw, are only making themselves look bad; they disagree with Mr. Britt, but instead of argument (except for John Thacker and Dave), they just pile on invective.

Such people are exactly the ones who probably can't understand why unlimited debate would be necessary: "We're right, you're wrong, so shut up!" seems to be their principle.

The Dems, rather to my surprise, are showing unaccustomed backbone & willingness to dig in and use what weapons they have to hand. This enrages those who think that Bush's every wish should be entered into law.

Note to Mr. Thacker: Many Dems, myself included, were disappointed that Clinton didn't spend much effort on his judicial picks, so that the rightward tilt from the 12 years before him wasn't counterbalanced. The Republicans thus had relatively little to fear from most of Clinton's picks, few of which were as astonishingly bad (or just plain weird) as Bush's circuit-court picks.

Posted by: Anderson at April 18, 2005 08:06 PM | Permalink to this comment Permalink

I though this was a good post. I would suspect that the increased use of the filibuster may have something to do with the elimination of the "blue slip" and other methods of derailing nominations - eerily similar to changing the rules of the house ethics committee when one doesn't care for the results.

Keep up the good work.

Posted by: TexasToast at April 18, 2005 08:57 PM | Permalink to this comment Permalink

Anderson comments that the numbers I quoted and the statistics compiled at http://dalythoughts.com/index.php?p=2983 are selective because they only include Circuit Court justices and do not include 'all federal appointees', by which I presume is meant District Court judges.

Pointing to District Court figures is no more than a smokescreen.

I would point out that the statistics as compiled are ALL on Circuit Court justices, so the trend identified is real. Additionally, there is a qualitative difference between District and Circuit Courts. Circuit Courts may overturn District Court rulings and, in turn, may only be overruled by the Supreme Court. This makes Circuit Court nominations much more important, in terms of shaping the judiciary. Consequently, I am forced to reject the notion that the abysmally low confirmation percentage of Circuit Court appointees is not more significant than the higher percentage of lower court confirmees.

Nice try, though.

Posted by: Dave at April 18, 2005 09:39 PM | Permalink to this comment Permalink

Dave, I didn't say they weren't more important. The fact that circuit judgeships are more important is indeed an excellent reason for heightened scrutiny of Bush's circuit court picks.

(And don't underestimate the power of a trial-court judge, by the way; many rulings are reviewed only for abuse of discretion, and that gives the district judges a lot of leeway.)

Again, however, congratulations for actually discussing the facts.

I also should've praised Mr. Britt's post for its refreshing antimajoritarianism (gasp for breath). The ends which democracy exists to promote are not always served by simple democracy. I think the U.S. is a better place for the ability of a minority, be it liberal or conservative, to obstruct legislation and appointments via the filibuster.

Posted by: Anderson at April 18, 2005 09:57 PM | Permalink to this comment Permalink

Senator Dole is on record supporting the "nuclear option." She's been a reliable party voter in her 4 months in the Senate.

And unlike most of the others, she has future prospects besides incumbency. Which is a good thing, if you're a Senator from North Carolina.

Posted by: Fred Arnold at April 18, 2005 11:27 PM | Permalink to this comment Permalink

"You know, Ronald Reagan was able to effect great changes in the makeup and direction of the federal judiciary without demanding that the Senate change its procedures to help him do it. "

"Clearly, George W. Bush is no Ronald Reagan."

Is this the same Ronald Reagan that nominated Sandra Day OConnor and Anthony Kennedy to the Supreme Court? Or are you talking about some President who would like to put actual conservatives in the courts?

Posted by: Al at April 19, 2005 12:30 AM | Permalink to this comment Permalink

It's good to see a conservative call a spade a spade. I've all but given up hope for such things.

SOmething you left out is that in the past, presidents who nominated judges who were staunchly opposed by the other party have been withdrawn and replaced with another nominee.

Not with Bush - the boy king doesn't give a damn what anyone thinks and he never rethinks or retracts anything.

As for the whiners posting here, consider a simple point - would you favor ending the filibuster rule if a Democrat was proposing it? If not, you should not support it now.

What goes around, comes around. This is a move that the boy king is forcing, and the Republicans will live to regret!

Posted by: Mark-NC at April 19, 2005 01:43 AM | Permalink to this comment Permalink

If I have read the comments right, it is ok for the Democrats to use any means at their disposal to block the appointments. OK, then why do the Republicans not have the same rights? When the Democrats controlled the Senate and Byrd was the majority leader he used this so-called Nuclear Option at least 4 times. But, let the Republicans try it and, all of a sudden, the nation is veering towards a Nazi-like state, per Senator Byrd.

When Democrats controlled the Senate Presidents Reagan and Bush had to nominate judges that were acceptable to them. Now that the Democrats are a minority President Bush has to nominate judges that are acceptable to them. Thus, it follows, that O'Connor and Kennedy are the type of judges that will be nominated. This is not acceptable, understandibly, to Republicans who thought we won the elections.

My personal preference would be to let them filibuster however long they wanted. Let them do it for a month, 2 months, whatever. Then let the voters decide who should get their vote.

By the way, all the filibustered judges have been blessed by the ABA, which was what the Democrats were whining about in 2001. Now that's not good enough. Particularly when the liberal organizations promise campaign funds as long as the Democratic senators block the nominations. Of course, this sounds like selling your vote to me. Better keep the focus on DeLay and off Teddy.

Posted by: Harry O at April 19, 2005 05:26 AM | Permalink to this comment Permalink


Without going into the Subsantive issues being debated here, does not the constitution expressly make for a separation between state and church and ergo religious beliefs?. Therefore if judges are being nominated (and I'll confess a great deal of ignorance about the process here - not being from the US myself), who are openly wear their religious preferences on their sleeve and therefore make judgements through such a moral lens the it stands to reason there nomination should be challenged.

Regardless of whether you are a liberal or conservative, the practice of making law and passing judgements on said laws on the basis on ones moral beliefs rather than an objective view based on fact, should be an anathema - particularly given the constitution. Afterall do we not roundly condemn the mullahs in Iran for doing the same thing??

I suppose as you put it that "the Dems have an anti-Christian litmus test" is a response to the overwhelmingly pro-christian agenda of the Republicans. Or at least to this uninformed/unenlightened observer.

Posted by: Aran Brown at April 19, 2005 06:43 AM | Permalink to this comment Permalink

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." - First Amendment, US Constitution

Aran, I'm glad you admit to being uninformed and unenlightened. I for one am glad that the Constitution means to keep government out of my free expression of religion. An anti-Christian litmus test would seem to be unconstitutional if one would, you know, READ the Constitution. PC "separation of church and state" debates often miss this point.

If discriminating against court appointments based on expression of religious beliefs is allowable, then wouldn't discriminating against cabinet appointments also be allowable? Oh, excuse me, it was allowed with Ashcroft.

Posted by: Waffle King at April 19, 2005 01:38 PM | Permalink to this comment Permalink

Fantastic post!! "As for the Senate, there are still a number of Republican Senators with connections to an earlier era when Republicans interested in reshaping the judiciary knew how to do it without manufacturing a crisis." Yes, I miss the old Republicans also. I had not considered the move from the House to the Senate as part of the issue. Very good.

I have to laugh at our dismayed conservative colleagues reading this post. I would guess that the "bovine majoritarianism" here, pining for partisan attacks against the alleged Vast Left Wing Conspiracy, are upset that there are indeed moderate Repubs out there that are looking for sensible and bipartisan legislation to occur.

Posted by: J. at April 19, 2005 03:36 PM | Permalink to this comment Permalink

Anyone who thinks O'Connor and Kennedy aren't conservative is so far to the Right that only a tiny squeaking sound is audible from here.

O'Connor, at least, is a Goldwater conservative. Is Barry Goldwater not conservative any more? And remind me what Goldwater thought about gay-bashing?

Folks, it's not O'Connor and Kennedy who aren't conservatives. It's those of you who want to go beyond conservatism---into what, I shudder to think.

Posted by: Anderson at April 19, 2005 04:30 PM | Permalink to this comment Permalink

Heh, he said McCain and serious in the same sentence. And meant it. Bawahhaahha

Posted by: Bullshark at April 19, 2005 05:05 PM | Permalink to this comment Permalink

I'll come back to this subject at a later time. For now, just two comments:

First, in response to Fred Arnold about Sen. Dole's position on the "nuclear option": as I understand it, all she has said is that judicial nominees deserve an up or down vote (which, incidentally, I agree with). I'm not aware that she has expressed support for changing the rules of the Senate to assure this (which is what I object to). I haven't tracked everything she has said on this subject, so I may be mistaken.

Second, in response to Anderson: actually, I don't think O'Connor or Kennedy are especially conservative. Maybe compared to a Justice like Brennan, but not compared to someone more in the mainstream and certainly not compared to me. Not to stray from the subject too far, but O'Connor's nomination was the result of a Reagan campaign pledge to appoint a woman Justice (she was the first). I'm not an O'Connor admirer but had no problem with the pledge, and in fairness to Reagan the choices available to him were many fewer than those available now.

As for Kennedy, he was the inoffensive, confirmable candidate after the Bork fiasco (actually, after Bork and the subsequent Ginsberg fiasco) when the Reagan White House was desperate just to get anyone through. I'll not rehash the story of Bork, which has no heroes and for the whole of which I had a ringside seat as Senate staff, but at the time I thought him much better for the Court than Kennedy. Sometimes you have to take what you can get.

Posted by: JEB at April 19, 2005 06:04 PM | Permalink to this comment Permalink

I'm scratching my head as to how you can call O'Connor a disciple of Goldwater. Do you think Goldwater would have agreed with her decision on affirmative action (the Michigan case)? What about her decision on campaign finance? Was that Goldwater-esque?

You may call her "politically astute" or even "pragmatic." But a Goldwater conservative? Methinks you have a different perception of Goldwater than most.

Posted by: Chris at April 19, 2005 06:52 PM | Permalink to this comment Permalink

A single decision that you disagree with does not result in O'Connor's being cast out of the Konservative Klub. I don't know how you can look at the body of her jurisprudence and say she's *not* a conservative. The classic "5-4" on the Rehnquist Court has been her & Kennedy voting with Rehnquist/Scalia/Thomas.

O'Connor's cautious jurisprudence has generally reflected an attitude that the courts should intervene as little as possible. This used to be considered conservative.

I think the conservatism of the 1970s & 1980s has been replaced by an unfortunate triumphalism that will ultimately do harm to real conservatism. (I'm a liberal, faute de mieux, but I think principled conservatives are right much of the time.)

---As for Kennedy, he's part of the classic 5-4 as I said, but much harder to get a read on. I think he votes on cases like Lawrence out of moral conviction, which is not such a hot thing jurisprudentially.

Posted by: Anderson at April 19, 2005 08:35 PM | Permalink to this comment Permalink

Waffle - You didn't correctly read what I said. I basically inferred that when judges are nominated, who are known for making judgements based upon their religious beliefs and not upon the objective facts then they should rightly be challenged.

Abortion is an example. If a judge is know to be pro-life and is appointed to a position whee he must interpret laws concerning abortion then he should rightly be challeged - why? because he will make judgements that may not be based objectively on the facts of law but based upon his own personal belief.

I would have no issue with the appointment of judges who openly profess their religious views - provided that those religious views do not interfere with their ability to make judgements based on law. I cannot comment specifically on the current situation, however it seems to me that in SOME cases the democrats are right to challenge such nominations - given the Bush Administrations preferences for making nominations of those who's religious views are so strong its concievable their judgement may be clouded.

I'd support your right to freedom of religious expression any day - unless it impinges on mine.

Posted by: Aran Brown at April 19, 2005 10:53 PM | Permalink to this comment Permalink
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