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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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Friday, May 20, 2005

 

The Federalist Option http://www.talkingpointsmemo.com/archives/week_2005_05_15.php#005720

posted by Aziz P. at Friday, May 20, 2005 permalink View blog reactions
With the impending showdown in the Senate attracting maximalist positions from right and left, I've found that neither side really seems to be taking the long view. The Democrats are prepared to risk the loss of the judicial filibuster, to try and Judge Owen (whose record is of unalloyed judicial activism) from being appointed. However, they will probably lose that gamble, meaning that the threat of extremist Supreme Court nominees is actually greater. The Republicans meanwhile are ready to destroy the Senate for the sake of raw short-term majoritarian power.

My feeling is that Judge Owen is bad, but the Supreme Court is more important. A compromise along those lines has just been put forth by a reader of Josh Marshall's which I think makes the case very well:

 

Let Owen go through. It will not make the 5th appreciably worse; the only more retrograde Circuit is the 4th. I know it will further imbalance the 5th and violate the dictum laid down by Sen. Schumer. The way I see it is that the 5th is a lost cause or sacrifice area already and for the foreseeable future. But, the DC Circuit to which Judge Brown has been nominated is both more important and more closely divided. Brown is so far out of the mainstream she almost makes Owens look moderate. Brown must be stopped. As must Myers. We need to preserve the independence of other Circuits such as the 9th and reluctantly let the 5th and 4th go even further, if such is possible, to the dark side. We have to depend on the fact that conflicts between circuits are often taken up by the Supreme Court.


strongly agreed. The independence of the Supreme Court is more critical, and the ascension of Owens to the 5th will really just amplify the nature of the 5th Circuit. The reason this appeals to me is that it is really a federalist position - the different regions of the country have different views on these social issues, and arguably the citizens of the South (taken in the aggregate) would no more apreciate the rulings of the 9th Circuit as the citizens of the West Coast would the 5th.

Ultimately, though, I think that the strategy of the Democrats is too principled, and not pragmatic enough. The Republicans are in a maximalist power grab mode, and I fully expect a replay of this showdown when a Supreme Court vacancy arises. That is the appropriate time, however, for Democrats to truly embrace principle and filibuster the nominee if need be. It is questionable whether such a vacancy will arise in Bush's term, but assuming it does, the Democrats can stand together then, and the moderate Republicans will also have less risk to their own careers in opposing the extremists.


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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.