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"America has two great dominant strands of political thought - conservatism, which, at its very best, draws lines that should not be crossed; and progressivism, which, at its very best, breaks down barriers that should never have been erected." -- Bill Clinton, Dedication of the Clinton Presidential Library, November 2004

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Tuesday, February 15, 2005

 

pissing matches http://story.news.yahoo.com/news?tmpl=story&cid=584&e=1&u=/nm/20050214/pl_nm/bush_judges_dc

posted by Aziz P. at Tuesday, February 15, 2005 permalink View blog reactions
When is judicial activism ok? When it's conservative judicial activism, apparently.

Last year, the Senate worked to confirm 204 of the President's judicial nominees and rejected only the 10 most extreme. This confirmation record is better than that achieved by President Clinton, President George H.W. Bush and President Reagan. Despite our unprecedented effort to work with the President in discharging our constitutional duty to advise and consent to his nominees, today he renominated 7 of the 10 rejected nominees.

We should not divert attention from other pressing issues facing this nation to redebate the merits of nominees already found too extreme by this Chamber.

To replay this narrow and completed debate demonstrates the Bush Administration's failure to craft a positive agenda for the American people.


Harry Reid, Senate minority leader. I'm starting to like this guy.

Given that the Democrats have not by any metric been obstructionist on confirmations (according to the statistics above), it would be nice to see President BUsh nominate mainstream, strucly constructionist judges rather than extremist judicial activists.

I found myself heavily convinced by several conservative bloggers, notably Doverspa at Red State, that activist judges are a problem. The gay marriage ruling in Massachusetts is a good example - though the legitmacy of that decision has since been confirmed by the state legislature. The judges that President Bush is trying to provoke a fight with - in my mind, probably solely to give the Republicans "obstructionist!" ammunition in 2006 - are just as bad.


Discussion

Two points and a queston. Let me divide the points into "the filibuster" and "judicial activism" as they are separate issues.

1. The filibuster. Republicans stopped many Clinton nominees while they were a majority in the Senate by using their numbers. They did not filibuster any of his nominees while they were in the minority and allowed both of his S.C. nominees through (Breyer 87-9 and Ginsburg 97-3). The difference between voting against someone and not allowing them to come up for a vote may be to minor for partisans, but it is a shift in senate traditions. The talking points you posted above gloss over the fact that Democrats don't have a majority and intend to thwart the confirmations by using a filibuster.

2. Judicial activism. I honestly do not know much about the candidates being nominated. If they would rule that abortion is illegal because there is a "right to life" I would oppose them. If they would force D.C. to allow its citizens to buy guns, I would oppose them. However, if they overturned past rulings that force abortion-on-demand on 2/3rds of the country, I would support them. If you have evidence that they will be activists, please present it so we may see it. Otherwise, I am lead to the conclusion that you are repeating Dem talking points about "mainstream" judges.

Finally, when I started posting here it was because you indicated a desire to make this site into a "purple nation" that sought out the middle majority. This post really belies any effort to do so. It is strictly partisan without any balancing of views or caveats. If you have moved past the "purple nation" notion, please let me know. It's your site, I just want to know what your purpose is.

 

First, let me say that "purple" does not mean automatically disagree with what Democrats advocate". My opinions stem from my principles, and also from having been persuaded on some topics. You accuse me of being partisan with this post, where I have already acknowledged basically adopting a conservative viewpoint with regards to judicial activism. Calling the Massachusetts court decision a mistake is in my opinion something that puts me well to the right of 99% of DailyKos and firmly within the moderate-right. I see no acknowledgement of this from you, Adam, despite having explicitly credited your arguments as being the impetus for my change in thinking. The label "partisan" thus seems like "you disagree with Me and agree with Them" rather than an honest appraisal of my intentions.

Keep in mind that this blog is one of the few where conservatives are invited to post to a largely liberal audience, with encouragement and invitation. If I were truly "partisan", would that be the case? Will you advocate I be given front-page priveleges at Red State? No. (and nor should you, obviously)

If we are going to ever reach a Purple concensus - by this I mean one where policy solutions can be evaluated on their merits rather than with regard to a litmust test of packaged ideologies - then the impulse to label disagreement as partisan has got to be the first thing to go.

To address your issues:

1. the filibuster. You calim they intend to thwart by a filibuster; that seems to involve future knowledge which I freely confess to lacking. The GOP is prepared to implement, for the first time ever, the nuclear option. This too represents, as you put it, "a shift in Senate traditions." Given that the GOP has been quite ruthless in excercising their majority power - even strongarming members of their own party for passage of the Medicare bill - isn't your concern for senate tradition somewhat one-sided?

Personally, I think that if the nuclear option is on the table, than that renders moot whether or not filibusters are acceptable or not for nominees. However, the data point tha you did not address is that the Democrats have approved a greater percentage of Bush's nominees than any other recent President has enjoyed. I bolded that part of Reid's statement above. Given that Bush has enjoyed unrivaled accomodation from the Democrats in his choice of nominees, I think it's simply disingenous to claim that the Democrats are being unreasonable or obstructionist.

Again, you are accusing me of being partisan here. Keep in mind that based largely on YOUR arguments, I now consider the Mass. supreme court to be activist. Since the GOP has already demonstrated that Senate tradition is irrelevant, I don't see why either side shoudl be bound by them in a prinicpled drive to stop such extremism, left or right, from being repeated.

2. regarding judicial activism of these specific judges, my understanding of their records is based largely from admittedly left-leaning sources. If you have evidence that they are reasonable advocates, let me see. I have posted a similar question to a diary at dkos and lets see what responses it attracts. I am prepared to accept that my evaluation , secondhand as it is, may be wrong. After all, I still think your characterization of Howard Dean suffers the same flaw, so whos to say I am immune! :)

However, it seems that at least one nominee is guilty of practicing law without a license:

Thomas B. Griffith, President Bush's nominee for the federal appeals court in Washington, has been practicing law in Utah without a state law license for the past four years, according to Utah state officials.

Griffith, the general counsel for Brigham Young University since August 2000, had previously failed to renew his law license in Washington for three years while he was a lawyer based in the District. It was a mistake he attributed to an oversight by his law firm's staff. But that lapse in his D.C. license, reported earlier this month by The Washington Post, subsequently prevented Griffith from receiving a law license in Utah when he moved there.

Under Utah law, Griffith's only option for obtaining the state license was to take and pass the state bar exam, an arduous test that lawyers try to take only once. He applied to sit for the exam, but never took it, Utah bar officials confirm.
I don't know what about Griffith is so desirable that such a massive professional violation could be overlooked by the Bush Administration in their drive to nominate him. It speaks poorly about the selection process indeed.

Also, Priscilla Owens, another one of the infamous Ten, is very well-known in Texas circles for being, to put it charitably, an ideolouge. To such an extent that few Republicans around here even try to deny it. But what less would you expect from a signatory to the Texas GOP Platform, which itself is notoriously beyond mainstream?

A good site which I will have to spend some time looking at is here:

Independent Judiciary

 

Aziz,

First, thank you for taking my arguments seriously and understanding the problems of activist courts. I hope my request for information about conservative activism shows that I am interested in the details as well, not just partisan gain.

Second, my question about the nature of the site is not meant to be accusative. It was just the tone and subjects had become more "ra-ra" Democrats without the balance you pursued in prior months. I agree that "purple" does not mean anti-liberal or anti-conservative. If this were a post on the merits of filibustering judicial nominees, it could shed some light on the issue without the frame of "look Dems have been good partners and Repubs weren't."

As for the substance of the issue, I will look at the judicial activism charges when I get a chance. The confirmation records (Clinton vs. Bush) can be seen in several lights. First, Clinton's SC nominees were overwhelmingly supported despite being pro-choice (and one with an ACLU history). Ginsburg only had 3 votes against her (that's less than Sec. State Rice). Second, Clinton had fewer nominees approved but mainly because Republicans had a majority in the Senate at the time. It would be more helpful to compare to times when Dems had the Presidency and the Senate (92-94). I don't oppose Democrats voting against nominees on ideological grounds. However, filibustering is a new mechanism to stifle majority confirmation of a judicial nominee.

Thus, if this tactic is to continue to be used, it needs to be justified. I am not a fan of the "nuclear option" but I'm not a fan of judicial filibusters. Discussing whether the filibuster in general and in the case of judicial nominees is a legitimate rule for a democracy would be quite interesting. As it stands now, Dems are preparing to continue with a new level of obstruction and Repubs are preparing to blow holes through Senate traditions to counter Dems doing the same. That isn't good no matter what side you're on.

 

Adam -

As I understand it:

The Democrats have prevented 10 of Bush's nominees from coming to a vote through the use of filibuster. 204 of his judges have been voted on and approved. The judicial vacancy rate is now about 4%, which is as low as it has been in many years.

Under Clinton, the Republican majority Senate prevented over 60 of Clinton's nominees from coming to a vote. Not voted them down, but prevented them from coming to a vote. The filibuster was not used. Other procedural tactics were.

Here is a pretty good summary.

Personally, I think the intent of the Constitution is that the President's judicial, and other, nominees should get an up or down vote by the Senate. I have no argument with you on that point. However, if the information I've given above is accurate, the current heartburn on the part of the Republicans on the issue is, frankly, hypocritical.

If the issue is the use of the filibuster, specifically, then you're correct, the Democrats have used it and the Republicans did not. If the issue is preventing the President's judicial nominees from receiving an up or down vote in the Senate, the Republicans have no basis for pointing a finger.

Cheers -

 

Hypocrisy.

As a recent politico, I will not try to defend the whole past of either party. Further, I will do my best to argue from principles instead of partisan advantage on policy issues. In this case, I agree with Republicans that nominees deserve an up or down vote.

So while trying to achieve a "purple consensus" as Aziz class it, we should look at the logic of the argument and not the almost neverending cycle of hypocrisy on both sides. Here, I think pubbies have the Constitution at their back. FWIW, they were blatantly going over the line when they held the Medicare vote open for several hours so they could twist the arms of certain Congressmen. So I'm not an apologist. I just believe a nominees deserves an up or down vote.

If Dems can pull off 6 Republican Senators, they can stop a nomination. I suggest pushing Chafee, Snowe, Collins, Voinovich, McCain, and Specter as targets.

 

I agree with you in principle, however, you haven't really made a case that using a filibuster is beyond the pale for opposing a nomination. It seems that the GOP is just as eager to throw Senate tradition out the window as teh dems are, with their consideration of the nuclear option. Why shoudl either party then accept to unilaterally disarm? Either the traditions are binding, or they aren't, and recent history demonstrates that the erosion of traditional parliamentary procedures for partisan gain has been driven more from one side of the aisle than the other. I think that given the history of provocation, the GOP cannot pretend to be surprised nor make pretense to righteous indignation now that the Democrats has responded essentially in kind.

Given that the nomination record of Bush's nominees is better than all recent presidents, and we are only talking about 3 percent of hs nominees being opposed, I find the argument that teh opposition party has a duty to stop "out of mainstream" nominations by any means neccessary to be compelling. Unlike others, I carry no party affiliation in my wallet, so I think I have some credibility to defend my position as being principled rather than partisan. Were the Democrats to nominate the Psycho Lawyer whose name escapes me but who was justifiably sent to prison recently, I would be happy to see the GOP use filibusters to stop her, and I think so too would you, Adam.

The bottom line is: Bush has had more than his fair share of deference for his nominees. The Democrats have a duty to their constitutional obligations also, however, and 3% is hardly obstructionism. Nor is the filibuster any worse an offense against Senate tradition than the nuclear option or the on-off hypocrticial use of the blue-slip rule by Hatch, or the other manipulations that so characterized the Clinton years.

Trying to frame the issue as "all nominees deserve a vote" ignores that the with a majority party, that means essentially arguing that the minority party excercoze ZERO oversight. That would be constitutionally negligent.

 

Constitutionally negligent?

You're taking this to a whole new level. The reason Bush has had a better rate of approval is because it is the first time in decades that the Senate and the Presidency have been in the same hands for more than 2 years. Thus the checks and balances were working. Now that Democrats have moved out of the mainstream (i.e. into the minority), they have lost their ability to be a check. If they can convince 6 Republicans to vote against a candidate, then so be it.

If their minority shrinks to 35 votes would they be "Constitutional negligent" to not block candidates then? The Senate's role is to advise and consent. Nominees are required to have a majority vote up or down as their final vote.

I am fine with opposing majorities blocking some judges (as Republicans did in the 1990s and Dems did in the 1980s), but I am not sold on why Democrats should now have the filibuster at their disposal where it was not before.

That being said, you seem to be defending the "use all your weapons" approach. That will lead to the "Constitutional option" being used by Republicans. And they aren't scared of losing the Senate majority anytime soon (30 Red States, 20 Blue Ones).

 

What's the standard?

Why is it acceptable for a majority party to prevent a nominee from coming to a vote, and not a minority party?

Why is it acceptable for a nominee to be prevented from coming to a vote due to a small number of Senators' control over the judiciary committee, but not acceptable if due to a fillibuster?

Thanks -

 

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Nation-Building was founded by Aziz Poonawalla in August 2002 under the name Dean Nation. Dean Nation was the very first weblog devoted to a presidential candidate, Howard Dean, and became the vanguard of the Dean netroot phenomenon, raising over $40,000 for the Dean campaign, pioneering the use of Meetup, and enjoying the attention of the campaign itself, with Joe Trippi a regular reader (and sometime commentor). Howard Dean himself even left a comment once. Dean Nation was a group weblog effort and counts among its alumni many of the progressive blogsphere's leading talent including Jerome Armstrong, Matthew Yglesias, and Ezra Klein. After the election in 2004, the blog refocused onto the theme of "purple politics", formally changing its name to Nation-Building in June 2006. The primary focus of the blog is on articulating purple-state policy at home and pragmatic liberal interventionism abroad.