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October 27, 2003

BLUE SLIP BLUES....Bill Frist was on Fox News Sunday yesterday chatting sympathetically with Tony Snow and Brit Hume about the Democratic strategy of filibustering judicial nominees they don't like. It was "unprecedented," Frist said, "inexcusable." Tony Snow piped up that we should go back to the old filibuster rules and make 'em "stay in all night." Brit Hume added sadly that the Democrats seemed to be paying "no discernible political price" for this perfidy.

But what if, in an alternate universe, there had been an actual Democrat on the show to provide the other side of the story? Perhaps the blue slip rule might have been mentioned.

Blue slips? Yes, yes, I know, that's boring. Senate procedures and all that. But it's at the bottom of the Republican hypocrisy that started this whole mess, so it's worth understanding. Here's a handy table that explains the whole thing.

Time Period

Rule

What It Means

Pre-1994

Two blue slips needed to kill a nominee.

This was the default "Senatorial courtesy" tradition followed by both parties regardless of who was president. If both senators from the judge's home state "blue slipped" a nominee, he was out.

1995-2000

Only one blue slip needed to kill a nominee.

Republicans take control of the Senate and decide that the old rule is archaic. Only one blue slip should be required to block a nominee, thus making it easier for them kill Clinton nominees.

2001

Back to two slips.

With George Bush in the White House, their shiny new rule suddenly no longer seems like such a good idea: why, it makes it easier for Democrats to block George Bush's nominees! Republicans change the rule back to two blue slips and Democrats threaten to filibuster over this transparent piece of hypocrisy.

2001-2002

Democrats reinstate one blue slip rule.

Republicans never really got a chance to enact their power play before Jim Jeffords defected. With Democrats in power, they keep the one blue slip rule.

2002-Present

Two blue slips.

Republicans now control the Senate again and make good on their earlier promise to move to a two-blue-slip rule. Democrats cry foul and threaten to filibuster. They do.

It was the Republicans who decided back in 1995 to unilaterally change the blue slip rule because they wanted to put roadblocks in the way of Bill Clinton's judges. But suddenly, when they had their own president in the White House, they didn't like the roadblock idea so much.

Are there any Republicans who can seriously defend their party's switch from two blue slips to one and then back to two as anything other than a naked and unprincipled power grap? If you want "unprecedented" and "inexcusable," that's where to look.

My guess is that Senate Democrats would be willing to give up filibustering in exchange for settling on the one-blue-slip rule that the Republicans themselves put in place in 1995. Any takers?

Posted by Kevin Drum at October 27, 2003 10:03 AM | TrackBack


Comments

The problem, Kevin, is that you've gone and assumed the Republicans actually care about whether or not something is precedented. Modern Republicans care only about getting their way, no matter how many rules they have to break or change.

Posted by: John Yuda at October 27, 2003 10:12 AM | PERMALINK

Jeez, how did John Yuda know exactly what I was going to say?

And it's not like Fox cares either....

Posted by: howard at October 27, 2003 10:16 AM | PERMALINK

Really?! Well at least one "modern Republican" actually cares about what "advise and consent" means as used in the U.S. Constitution - you know, that whole pesky "Original Intent" thing and I don't remember this issue being a Super-Majority vote - so if it takes 60 Senators, or in the case of Blue Slips, only 2 Senators, to circumvent that basic Constitutional duty, something's wrong.

Posted by: Charlie at October 27, 2003 10:16 AM | PERMALINK

So let's see:

1995 - The Repubs implement 1 blue slip because they are in the majority and it benefits them.
2001 - The Dems implement 1 blue slip because they are in the majority and it benefits them.

And the Repubs are doing a a naked and unprincipled power grap?. What were the Dems doing?

And now, the Repubs have returned to the pre-1994 condition, and so the Dems start the new process of filibustering nominees, and it's the Repubs at fault?

Posted by: Ron at October 27, 2003 10:21 AM | PERMALINK

Well at least one "modern Republican" actually cares about what "advise and consent" means as used in the U.S. Constitution ...

That's one...

Posted by: dave at October 27, 2003 10:23 AM | PERMALINK

I think we have to conced this one to Ron, Charlie and their team. Senate rules are undemocratic -- filibusters, blue slips, 2-per-state, all are obstacles to majority rule. Read Caro's master of the Senate and you can see ho wlong equal rights for black Americans were stymied in the Senate (by Democrats, for whatever it's worth.)

The issue here isn't that Senate R's or D's are doing anything unprecedented. It's that the precedents are bad.

Posted by: jw mason at October 27, 2003 10:28 AM | PERMALINK

and so the Dems start the new process of filibustering nominees, and it's the Repubs at fault

Not a new process...

• In 1968, President Lyndon Johnson nominated Associate Justice Abe Fortas to replace Earl Warren as Chief Justice of the Supreme Court when Warren announced his intention to retire. The Judiciary Committee approved the Fortas nomination by a vote of 11 to 6, but conservative Senators, led by Senator Strom Thurmond and others, mounted a filibuster on the floor on the motion to proceed to the nomination. Their objections to Fortas were based, among other things, on concerns that his opinions as a member of the Warren Court were too liberal in the areas of civil liberties and the rights of the accused as well as concerns about Justice Fortas’ refusal to respond to some allegations leveled against him.

Typical, current Republicans play dirty and then cry foul when the other side decides to follow their lead.

Posted by: ChrisS at October 27, 2003 10:28 AM | PERMALINK

Ask Levin and Stabenow how Hatch is respecting the 2-slip rule when it comes to Saad and other Michigan nominees. Even opposition by both Senators (Democrats) isn't enough to kill those nominations under the current "rule" (euphemism quotes).

Posted by: phil at October 27, 2003 10:30 AM | PERMALINK

Ron, do you get paid for being so obtuse or is it just some kind of hobby?

Posted by: Thumb at October 27, 2003 10:30 AM | PERMALINK

"So let's see:

1995 - The Repubs implement 1 blue slip because they are in the majority and it benefits them.
2001 - The Dems implement 1 blue slip because they are in the majority and it benefits them.

And the Repubs are doing a a naked and unprincipled power grap?. What were the Dems doing?

And now, the Repubs have returned to the pre-1994 condition, and so the Dems start the new process of filibustering nominees, and it's the Repubs at fault? "

Both sides want control. Neither side has total ownership of "principles." But when one side (the rethugs) calls the other side "unprincipled" for doing what they themselves do, the name for that is:

HYPOCRICY.

Ed

Posted by: Ed Drone at October 27, 2003 10:32 AM | PERMALINK

Don't worry Thumb, it's pretty obvious how Ron is deliberately missing Kevin D.'s point.

Posted by: David W. at October 27, 2003 10:32 AM | PERMALINK

ron, up is not down. black is not white.

the gop changed the rule when it suited them. then changed it back when it didn't suit them. to then say this is the dems fault is moronic.

kevin, how much of this crap will it take for you to reconsider your position on recalling arnold?

Posted by: danelectro at October 27, 2003 10:33 AM | PERMALINK

jw mason
I'll agree that any blue slips are a mistake. But I'll also take exception to Kevin's post heaping all the blame on the Repubs.

The Dems are doing the same thing the Repubs are, they want 1 slip when it's to their advantage, and 2 slips when it is to their advantage. No crying foul when the Repubs do the same thing.

And if we are currently back to pre-1994 blue slip condition, now the Dems want to filibuster, and I'm a little confused how this gets blamed as Repub troublemaking.

Posted by: Ron at October 27, 2003 10:33 AM | PERMALINK

Throughout the debate over judges I have been struck by two points. First is the total lack of historical context in which this debate is presented. The media acts as if the Democrats began the tactic of fighting judicial nominees that they philosphically oppose. This fight began in the 1960's with Richard Nixon and as the years pass the fight gets meaner with each passing year. Yet no one wants to discuss the historical context.

More importan than this point is a more serious political issue. The electorate is fairly well split down the middle in a political sense. Remeber that more pepole in 2000 wanted Al Gore to select their judiciary than wanted Bush to have that job. Bush should have recognized that situation and come up with a process that selected a more balanced judiciary. He elected not to do that and as a result, we have this battle over his most right wing choices. Had he selected more balanced candidates some of the people currently being opposed would probably have been confirmed. Bush made it an all or nothing game and now is complaining about the process.

Posted by: Stuart Shiffman at October 27, 2003 10:34 AM | PERMALINK

Kevin, I'm afraid you've got it wrong:
1995 - The Repubs implement 1 blue slip because they are in the majority and it benefits them.
2001 - The Dems implement 1 blue slip because what's fair for 1 is fair for the other
2002- The Repubs do away with any pretense of honoring the Blue Slip Rule because it would interfere with their ability to insure confirmation for whomever they want, even in the face of opposition from both home state Senators.

Case in point: Carolyn Kuhl is opposed by both Feinstein and Boxer, yet her nomination was voted out of committee and the Senate vote on her nomination to the 9th Circuit is rumored to be scheduled for next week.

What rules? And these folks say they treasure the "rule fo law"? Ha! The usual hypocrisy for these "rules are for thee-not for me" types...

Posted by: Fast-Talking Sue at October 27, 2003 10:39 AM | PERMALINK

Ron,

Your argument would have validity if the Democrats hadn't maintained the two blue-slip rule through the terms of Republican presidents. They didn't choose to make it easier to block presidential appointments. It was the Republicans who decided to change the rules for partisan advantage.

And I know the GOP point of view is that if Republicans cheat, Democrats should still play by the old rules. But it's not a perfect world, and sometimes when we're slapped, we slap back.

Posted by: Magenta at October 27, 2003 10:41 AM | PERMALINK

From a little cursory research via Google, it seems that the rule never changed in 2001. The Republicans had planned to re-implement the two blue slip rule, but Jefford's defection ended all possibility of doing that.

From what I can tell, nobody implemented anything in 2001, and no power grabbing really took place. Only proposed power grabbing by the Republicans, followed by relieved satisfaction with the status quo by the Democrats.

Maybe someone with a little more time on their hands can verify/debunk this.

Posted by: P at October 27, 2003 10:42 AM | PERMALINK

So let's see:

1995 - The Repubs implement 1 blue slip because they are in the majority and it benefits them.
2001 - The Dems implement 1 blue slip because they are in the majority and it benefits them.

And the Repubs are doing a a naked and unprincipled power grap?. What were the Dems doing?

It's like this...

in 1995, when the R's implemented the 1 blue slip rule, they were making a naked and *principled* power grab; the principle is that nominees should be subject to political scrutiny.

In 2001, when the D's implemented the 1 blue slip rule, they were *also* making a principled power grab; the principle is that nominees should be subject to political scrutiny, even when political control transitions from one party to the next.

Here is where the R's made an additional *unprincipled* power grab: asserting that justice is served when the interests of the R's are advanced by the rules, but that justice is denied when the interests of the D's are advanced by the very same rules.

Posted by: james woodyatt at October 27, 2003 10:43 AM | PERMALINK

Charges of hypocrisy in the context of judicial nominations are, well, hypocritical. When it comes to how judicial nominees are treated, neither party has clean hands. They've turned a process that was meant simply to ensure that a nominee wasn't a crook or a drunk into a Byzantine labrynth where nobody wins.

Posted by: SRock at October 27, 2003 10:43 AM | PERMALINK

if the Democrats hadn't maintained the two blue-slip rule through the terms of Republican presidents

I'll bet that Repubs maintained 2 slips through the terms of Dem presidents, too. And I'll agree that the Repubs started this round of trouble, but the Dems have performed the same actions as the Repubs since it started.

Kinda hard to argue that the other guy is dirtier than you are when you're wrestling in the mud, even if the other guy did start it.

Posted by: Ron at October 27, 2003 10:46 AM | PERMALINK

The Republican "defenders" here are indeed deliberately missing the point. The point is that when Frist says it was "unprecedented," he is lying and he knows he is lying. And when the Fox News folks agree, they are lying and they know they are lying. The issue here isn't whether Senate rules are typically good (they are typically terrible.)

The Democrats were at least honest when they chose the one-blue slip rule, they said "you did it to us and now we are going to do it to you." The conservatives, on the other hand, lie and say "it is unprecendented!" when they know that they are the precedent!

The issue here is that Conservatives have gone from being the folks who prided themselves on telling the hard truths (deficits are bad, incentives matter, farm subsidies are inefficient) to being the folks who have adopted lying about facts and policies as a full-time political strategy. The ends justify the means. In this, the Republicans are aided by "think tanks", "journalists," "commentators", "authors" and "bloggers" who all agree to parrot today's lie.

It is very much like when the left went over the deep end in decades past. Some conservatives then had the courage to stand up and those of us who value truth have a responsibility to fight back now. What is at issue isn't "left/right" it is the fundamental question of whether truth has amy place in our political discourse.

Posted by: ProfDumb at October 27, 2003 10:50 AM | PERMALINK

Okay, Prof, so what if the Republicans are lying again? It's not like it's about anything serious, like a blowjob.

Posted by: scarshapedstar at October 27, 2003 10:54 AM | PERMALINK

Kinda hard to argue that the other guy is dirtier than you are when you're wrestling in the mud, even if the other guy did start it.

Tell that to Bill Frist and Fox News.

Posted by: ryan b at October 27, 2003 10:55 AM | PERMALINK

I'm not going to wade into the historical debate here -- I'll leave that to others -- but what kind of fool would agree to a deal that says "you can no longer stop nominees with 41 votes but you can still stop them with 1"? (I'm sure the answer is "Trent Lott," but that's beside the point). Such a deal also depends on the Dems keeping their word, and let's not go there besides to say that the history of deals between the parties over the last decade or so is fairly grim.

Kevin's idea also depends on whether the blue slip applies to an entire federal circuit, as has been recently suggested by some Democrats; thus, a single Democratic Senator could hold up every judge in a circuit.

Then again, if this meant up-or-down votes for the DC Circuit (which has no Senators) and the Supreme Court, it might be worth it.

Posted by: Crank at October 27, 2003 10:56 AM | PERMALINK

Thumb asks
Ron, do you get paid for being so obtuse or is it just some kind of hobby?

Is that the blunt, dull obtuse or the insensitive, stupid obtuse? Not that it really matters, I don't get paid to do it.

Posted by: Ron at October 27, 2003 10:57 AM | PERMALINK

I notice that when Ron went on his hourly "GOP good, Democrats bad" rant, he had to VERY selectively edit Kevin's chart to make it say what he wanted it to say.

Sorry, Ron. A look at the whole history shows that the Democrats were far more sinned against than sinning -- and it also shows that your heroes on FAUX News are spinning so hard they could be used for turboprop engines.

Posted by: Phoenix Woman at October 27, 2003 11:00 AM | PERMALINK

"Kinda hard to argue that the other guy is dirtier than you are when you're wrestling in the mud, even if the other guy did start it."

Bullshit. If the other guy starts it, it is his fault - or are you one of those liberal pinko-commie terrorist moral relativists that thinks good and evil are a sliding scale, Ron?

Only a moron is going to practice Marquess of Queensbury Rules in a brawl; if the SOB pulls a knife, you pull yours, you don't stand there wagging your finger at him. Find someone who is willing to abide by mutually agreed to rules, and a fist-fight can be fun. But when dealing with a rabid dog, you shoot it for the good of the community.

Posted by: Phalamir at October 27, 2003 11:02 AM | PERMALINK

Them as has the Gold makes the Rules.

What are you all arguing about? This is and has always been "politics as usual" since the days of Hamilton, Jefferson and Adams. Rules are only rules so long as they serve the man in power, even if he's only the chairman of an obscure, but strategic sub-committee.

Highlight it? Certainly.

Answer it? Certainly, but remember not to face into the wind while doing it...

Posted by: Terry Vinson at October 27, 2003 11:02 AM | PERMALINK

The specifics behind the rules are all very interesting, I suppose. But the bottom line is this:

The GOP blocked lots of Clinton appointees between 1995-2000. This has already happened.

The Democrats want to reciprocate. To get the playing field back to even.

The Republicans want to benefit doubly from their past malfeasances, by not only filling new vacancies with their own nominees, but by also plugging up all the old holdover vacancies, which they themselves created, with their own nominees.

In politics, one bad turn deserves another. In terms of real world consequences, Ron, your logic only makes any sense once the Democrats get their licks in one time and we get the playing field back to even. As things currently stand, your plan would do nothing but screw the Dems, plain and simple.

Posted by: JP at October 27, 2003 11:11 AM | PERMALINK

ChrisS:

Thanks for the history lesson - but I think you left some pertinent facts out - let's take a pop quiz then:

1) Who were the conservative Senators (other than Senator Strom Thurmond) who mounted the Fortas filibuster in the Senate?

2) What year did Thurmond change his party affiliation to Republican?

3) Was Thurmond's filibuster sucessful (remember, he's dead now) in keeping the Fortas nomination from a full vote before the Senate?

Posted by: Charlie at October 27, 2003 11:12 AM | PERMALINK

Phoenix Woman says
I notice that when Ron went on his hourly "GOP good, Democrats bad" rant,...

I will point out first, that I have not defended the Repubs. I will also reiterate that this whole blue slip thing looks like a bad deal to me.

But I'll try to be less obtuse
pre 1994 - Status quo
1995 - Repubs manipulate system to their advantage (they were in the majority)
2001 - Repubs attempt to manipulate system to their advantage (they thought they were in the majority)
2001 - Dems manipulate system to their advantage (because they were in the majority)
2002 - Repubs manipulate the system to their advantage (because they were in the majority)

I see a common factor in all these statements, the party in the majority manipulated the system to their advantage. And y'all are claiming that is only bad when one of the parties does it.

The Repubs want 2 blue slips when their guy is in office, and 1 blue slip when the other guy is in office.

The Dems want 2 blue slips when their guy is in office, and 1 blue slip then the other guy is in office.

See the similarity in those 2 sentences? The only reason the Repubs are currently winning the fight is that they are in the majority. It has nothing to do with the pure motives and practices of the Dems.

Posted by: Ron at October 27, 2003 11:13 AM | PERMALINK

The party that controls the senate has much greater weight in determining how judges are confirmed. The party in control of the senate changing the rules to suit itself is not unprecedented. What is unprecedented is that it now takes 60 votes to pass a judge. Whether thats a good thing or a bad thing its obvious that in all the time the democrats held both the Senate and the Presidency that there were no fillibusters of Lower court nominees

Posted by: Damon at October 27, 2003 11:15 AM | PERMALINK

Still waiting for one of the republican defenders to explain Fox and Frist's utter density in stating that this is 'unprecedented'. Which is what is at issue here, not the tit-for-tat itself.

Posted by: Al at October 27, 2003 11:18 AM | PERMALINK

Charges of hypocrisy in the context of judicial nominations are, well, hypocritical. When it comes to how judicial nominees are treated, neither party has clean hands. They've turned a process that was meant simply to ensure that a nominee wasn't a crook or a drunk into a Byzantine labrynth where nobody wins.

SRock,
Just drunks and crooks? How about dangerous ideological crackpots? I would say that the Democrats are using the rules - however the goalposts are being shifted - for exactly their intended purpose.
And do you really believe that a Republican Senate minority - in reaction to a Democratic President who was "elected" by less votes than their guy and immediately nominated, say, Noam Chomsky - would not be doing the very same thing?
The hell you do.

Posted by: Fightin Irish at October 27, 2003 11:20 AM | PERMALINK

Al
If I took off and drew this much fire for the wrong argument, I'll...I'll...hell I don't what I'll do :)

Posted by: Ron at October 27, 2003 11:23 AM | PERMALINK

I may have this wrong (and would welcome corrections, if so), but there might need to be a couple of additions to the chart.

1. Traditionally, it was the home state Senators who were allowed to blue-slip a judge. From 1994 on, *any* Senator was allowed to blue-slip *any* of Clinton's nominees, a provision that Senator Hatch killed when he took control again.

2. The latest from Senator Hatch is that even two blue-slips is not enough to kill a judicial nominee. Two nominees, at least, have been pushed through his committee despite the fact that they were blue-slipped by both home-state Senators.

3. I'd also be interested in a review of how long nominees were blue-slipped. I seem to recall that the blue-slip was there as a courtesy for Senators to be given time to review the qualifications and credentials of a judge -- not to issue a permanent block. Under Clinton, of course, these routinely became permanent blocks. Under previous presidents, I don't think that was the case.

With respect to the issue of filibusters, as noted above, these are not new. Nomination of a Supreme Court Justice and a Cabinet minister were both filibustered. In addition, cloture votes have been issued for several judicial nominees over the past 30 years or so. In at least one of these cases, the Republican who called for the vote specifically said he was filibustering the nominee. It's just that in those earlier cases, the Senate had the 60 votes needed to override the filibuster.

In short, Frist and the Fox commentators were lying.

Posted by: PaulB at October 27, 2003 11:23 AM | PERMALINK

Al:

QUOTE: "Still waiting for one of the republican defenders to explain Fox and Frist's utter density in stating that this is 'unprecedented'."

What part of ". . . it now takes 60 votes to pass a judge" don't you understand and/or think was within the "Original Intent" of Art. II, Sec. 2, Clause 2 in the U.S. Constitution?

Posted by: Charlie at October 27, 2003 11:27 AM | PERMALINK

I see a common factor in all these statements, the party in the majority manipulated the system to their advantage. And y'all are claiming that is only bad when one of the parties does it.

Wrong. It's bad because one side has already gotten screwed, and they're now in the hole because of it. What you are claiming is that the Republicans should be allowed to manipulate the system, but the Democrats shouldn't be allowed to retaliate. How convenient.

Posted by: JP at October 27, 2003 11:28 AM | PERMALINK

QUOTE: "Still waiting for one of the republican defenders to explain Fox and Frist's utter density in stating that this is 'unprecedented'."

What part of ". . . it now takes 60 votes to pass a judge" don't you understand and/or think was within the "Original Intent" of Art. II, Sec. 2, Clause 2 in the U.S. Constitution?

And the award for most illogical non sequitur of the day goes to...

Posted by: JP at October 27, 2003 11:29 AM | PERMALINK

Damon wrote: "its obvious that in all the time the democrats held both the Senate and the Presidency that there were no fillibusters of Lower court nominees"

Damon, you're simply wrong. See above.

Posted by: PaulB at October 27, 2003 11:31 AM | PERMALINK

Is that the blunt, dull obtuse or the insensitive, stupid obtuse?

I would suggest C) Having an obtuse angle, because you really don't know how to follow a straight line very well, much as you try to sell it as such. However your suggested definitions are good too. If the shoe fits . . .

Posted by: Thumb at October 27, 2003 11:32 AM | PERMALINK

Regardless of everything else, is it a good thing that from now on it will take 60 votes to pass a circuit court judge?

Posted by: Damon at October 27, 2003 11:34 AM | PERMALINK

in all the time the democrats held both the Senate and the Presidency that there were no fillibusters of Lower court nominees

False. Republicans have filibustered, among others, Rosemary Barkett, H. Lee Sarokin, Richard Paez and Marsha Berzon.

Posted by: Spinning Tops at October 27, 2003 11:34 AM | PERMALINK

JP says
What you are claiming is that the Republicans should be allowed to manipulate the system

Funny, I don't remember saying that, maybe you can find my specific quote...

Yes the Repubs have manipulated the system, and yes the Dems have manipulated the system. I consider both bad, how about you?

Posted by: Ron at October 27, 2003 11:37 AM | PERMALINK

"But I'll try to be less obtuse
pre 1994 - Status quo
1995 - Repubs manipulate system to their advantage (they were in the majority)"

Incorrect - the correct version would be: 'pre-1994 - the Democrats maintain the same rules, even when there is a GOP president in office."

Posted by: Barry at October 27, 2003 11:38 AM | PERMALINK

PaulB- your assertation that several lower court nominees have been fillibustered lacks any facts to back it up. Do you have a link to something talking about a fillibuster of a lower court nominee? A case where 41 republicans would not allow a vote on a nominee that would pass otherwise?

Posted by: Damon at October 27, 2003 11:39 AM | PERMALINK

Damon wrote: "Regardless of everything else, is it a good thing that from now on it will take 60 votes to pass a circuit court judge?"

Nice attempt to shift gears, but the argument simply doesn't hold water.

First of all, using your logic, it has taken 60 votes to pass a circuit court judge for the least 35 years or so. Somehow, we've managed to live through those intervening years without too much difficult.

Second, just how many judicial nominees are the Democrats filibustering? And how many of them have passed through on a standard majority-rules vote?

Third, why is it bad that 40 Senators can block a judicial nomination, but not bad that a single Senator could do so in the Clinton years?

Posted by: PaulB at October 27, 2003 11:39 AM | PERMALINK

Damon at October 27, 2003 11:34 AM

>is it a good thing that from now on it will take 60 votes to pass a circuit court judge?

Probably.

BTW, the Constitution does not say what is meant by "advice and consent."

Posted by: raj at October 27, 2003 11:39 AM | PERMALINK

JP:

Would you care to point out any fault in my logic? Or, is the phrase "most illogical non sequitur" kinda like a double negative - rather than simply redundant - and you actually are saying you agree with me?

Posted by: Charlie at October 27, 2003 11:40 AM | PERMALINK

Al and Profdumb are on the money. It is the unchallenged assertion that this is unprecidented that galls me. The bottomline to all of this judicial stuff is that elections really do matter!

Posted by: Jon at October 27, 2003 11:40 AM | PERMALINK

Spinning Tops- I beleive that all of those nominees were simply not let out of committe. I don't know all the names specifically. Weren't the republicans in charge of the senate for all those you listed? There wasn't a need to fillibuster them.

Posted by: Damon at October 27, 2003 11:41 AM | PERMALINK

Thumb
I certainly hope that we are smiling about one of my many shortcomings :)

I'm happy that you like the obtuse angle thing, though. Anybody can argue a straight party line.

Posted by: Ron at October 27, 2003 11:41 AM | PERMALINK

Damon, what part of "in those earlier cases, the Senate had the 60 votes needed to override the filibuster" are you failing to understand?

A cloture vote was called for, more than 60 Senators voted for cloture, no filibuster was possible. Do I need to use words of one syllable?

Posted by: PaulB at October 27, 2003 11:42 AM | PERMALINK

What part of ". . . it now takes 60 votes to pass a judge" don't you understand and/or think was within the "Original Intent" of Art. II, Sec. 2, Clause 2 in the U.S. Constitution?

Hey, news flash: it's always taken 60 votes to pass a judge, and it's worked pretty damn well with obvious exceptions provided the President makes reasonable appointments (which can include political leanings, but doesn't include ideologues). Bush has had many judges passed with 60 votes, so don't act like all of a sudden the 60 vote requirement is oppressive. It's only been a handful of judges that have been stopped by this requirement, and they sure aren't middle of the road, that's for sure.

Posted by: Mike D at October 27, 2003 11:42 AM | PERMALINK

raj:

You will agree that the Constitution does in fact spell out all other circumstances when more than a majority vote is required, for instance in that very clause - Treaties require 2/3. Funny that the drafters of the Constitution left out your argument (but don't worry, they left out many things you consider sacred, i.e. the right to abortion on demand or homosexual sodomy).

Posted by: Charlie at October 27, 2003 11:44 AM | PERMALINK

PaulB- I wasn't shifting gears. I was simply asking a question if you think it is better now that it will take 60 votes to pass a judicial nominee. That is the precedent that democrats have set now. Thats why this is an unprecedented move by democrats.

I don't think that home state Senators should be able to block judicial nominees. But the party that controls the senate has the power to change those rules and that has been going on since the birth of the senate.

Once again what is unprecedented is that the minority party has never had as much control over the judicial nominations process as the Democrats do right now. I don't know whether it is a good thing or a bad thing but it certainly is a big change from years past.

Posted by: Damon at October 27, 2003 11:46 AM | PERMALINK

Another thing. I am sure this has always been the case but I think the Republican party is in danger of proving the axiom that power corrupts but absolute power corrupts absolutely. The way the Texas legislature changed so many rules to get their redistricting map could be a harbinger to come of how rules just don't matter. I know that the when the Dems were in power they likely were just as bad...but I have not seen anything like this in my lifetime....I just have to trust that the system will withstand the assault. Forgive me if I sound too partisan (I am really an independent) but I am just finishing Molly Ivins book Shrub and some of the her claims are really scary.

Posted by: Jon at October 27, 2003 11:46 AM | PERMALINK

PaulB- So you agree that no lower court judge has ever had their nomination stopped by a fillbuster right?

Posted by: Damon at October 27, 2003 11:47 AM | PERMALINK

No one has really pointed out that while Clinton's nominees died on the vine due to the revised "blue slip" rule put in place by Hatch and the Republicans, those judicial seats remained empty. They were there for Bush (and the Federalists Society moguls, such as Ted Olson, who played such a big part in savaging Clinton's presidency) to fill with right-wing extremists, a thing he has tried, with some success, to do. So it's not just a case of turnabout and fair play; you did it so I do it; we're both in the mud so we're both dirty as Ron so obtusely (and repeatedly) puts it. The Republicans owe the country six years of turnabout on judicial nominations. But then, infusing the judiciary with right-leaning judicial activists was their plan all along.

"Uniter" Bush might have repaired the situation by re-nominating Clinton's rejected nominees. He might even have just re-nominated one or two, for symbolic value. Bush did no such thing; again, the Republican plan was apparent all along. These days, Republican defenders tend to pretend that no such strategies ever exist, and to go for simply the most obtuse interpretation of any partisan scrap; thus Ron.

Posted by: Demetrios at October 27, 2003 11:48 AM | PERMALINK

Thanks for the history lesson - but I think you left some pertinent facts out - let's take a pop quiz then:

1) I don't know, you have a list? Because the most I could find was that it was "bipartisan" because it was conservative republicans and southern democrats (i.e. soon-to-be republicans) that led the charge.

2) Strom switched in 1964.

3)Here:

"... Strom Thurmond mounted a successful filibuster against Fortas–killing Fortas's chances as well as that of the liberal Thornberry, who had been nominated to take Fortas's seat..."

But thanks for the quiz, was this supposed to be a rhetorical device? How about next time you do your own research.

Posted by: ChrisS at October 27, 2003 11:48 AM | PERMALINK

raj
I don't think the 60 vote thing is good. Clinton did most (or it sure seemed like it) of his appointing during recesses, absolutely no advice and consent there. Clinton and Bush both have had trouble getting judgeships filled because people are fiddling with the simple majority.

Both parties are going to have to find rules they can live with no matter who has the Senate and Presidency.

Posted by: Ron at October 27, 2003 11:48 AM | PERMALINK

Yes the Repubs have manipulated the system, and yes the Dems have manipulated the system. I consider both bad, how about you?

Yes, I do. But you do not. Otherwise, you would want the Republicans to make some restitution for their past bad acts, rather than allowing them to benefit from those acts. Your blithe unwillingness to consider that practical reality shows that you are insincere.

Posted by: JP at October 27, 2003 11:49 AM | PERMALINK

I don't think the 60 vote thing is good. Clinton did most (or it sure seemed like it) of his appointing during recesses, absolutely no advice and consent there.

I call BS first. Clinton made exactly one recess appointment in his term of office - Roger Gregory of the Fourth Circuit.

Posted by: JP at October 27, 2003 11:50 AM | PERMALINK

Damon, you're simply factually wrong. Let's go through this again.

You wrote: "That is the precedent that democrats have set now. Thats why this is an unprecedented move by democrats."

As noted above, you are simply wrong. There have been something like 15 unsuccessful attempts to filibuster judicial nominees, one successful attempt to filibuster a judicial nominee, along with additional attempts (and one success) to filibuster Cabinet appointees. Those earlier filibuster attempts all failed because 60 or more Senators voted for cloture, thus denying the minority the ability to filibuster. This is not only not unprecedented, it has taken place repeatedly over the past 35 years.

I don't think that home state Senators should be able to block judicial nominees. But the party that controls the senate has the power to change those rules and that has been going on since the birth of the senate.

Not to the extent that has happened since 1995.

Once again what is unprecedented is that the minority party has never had as much control over the judicial nominations process as the Democrats do right now.

Complete and total bullshit. The 1995 rules change allowed any single Republican Senator to kill any Clinton judicial nominee completely and totally. That is "control over the judicial nominations process," and it's far more control than the Democrats have today.

I don't know whether it is a good thing or a bad thing but it certainly is a big change from years past.

What's changed is that the minority party no longer has the power that it had in years past, not that they have greater power.

Posted by: PaulB at October 27, 2003 11:53 AM | PERMALINK

Clinton made exactly one recess appointment in his term of office - Roger Gregory of the Fourth Circuit.

And if memory serves, he did that because Gregory was blue-slipped.

Posted by: Demetrios at October 27, 2003 11:54 AM | PERMALINK

Clinton was trying to pass nominees through a republican congress. You want a fair comparison look to the first 2 years of Clinton's presidency when the democrats controlled both the Senate and the presidency. Did the republicans take extraordinary measures to block nominees? (They may have- I don't know). I know that they blocked no nominees with a fillibuster during that time.

Posted by: Damon at October 27, 2003 11:54 AM | PERMALINK

JP has it right. The Republicans owe the country six years of turnabout on judicial appointments. They could likely do this by insisting themselves that Bush nominate more moderate, less activist jurists. They won't, as we know, because this has been their plan all along.

Posted by: Demetrios at October 27, 2003 11:57 AM | PERMALINK

Damon wrote: "PaulB- So you agree that no lower court judge has ever had their nomination stopped by a fillbuster right?"

That's just dumb, Damon. The only difference between those past attempts and the current attempts is that only one of those past attempts succeeded. Why are you trying to pretend that there is a vast difference between a failed filibuster and a successful filibuster? They both require 60 votes. They both require a cloture vote. This precedent was set 35 years ago. Frist and the Fox commentators are lying.

Posted by: PaulB at October 27, 2003 11:58 AM | PERMALINK

Damon wrote: "look to the first 2 years of Clinton's presidency when the democrats controlled both the Senate and the presidency. Did the republicans take extraordinary measures to block nominees? (They may have- I don't know). I know that they blocked no nominees with a fillibuster during that time."

That's because the Democrats and Republicans were playing by long-established rules, Damon, rules that the Republicans abandoned when they gained power. Your point is irrelevant.

Posted by: PaulB at October 27, 2003 11:59 AM | PERMALINK

I don't think the 60 vote thing is good.

Both parties are going to have to find rules they can live with no matter who has the Senate and Presidency.

Absolutely, although I feel personally that 60 votes is too low of a requirement. Requiring 67 or 75 is much better.

The problem here is not, in my view, an institutional problem of filibuster, but rather a problem of a failure of leadership and compromise.

Posted by: Spinning Tops at October 27, 2003 12:00 PM | PERMALINK

JP, I give, 1 recess appointment. But that doesn't change the fact that our last 2 presidents have been unable to fill judgeships.

Which brings me to Demetrios
I don't know (and I really don't want to look up) how many of Clinton's nominees were blocked vs. how many were approved (vs. how many never even came up for vote), I will agree that the net effect was a lot of unfilled judgeships.

Do you really think was a grand plan? Did they know they were going to win the presidency? Did they know they were going to maintain control of the Senate? I doubt it, the election was too close to bet on and the hold on the Senate was pretty tenuous until lately.

I asked this question in another thread and nobody touched it, so I'll ask it again: What do you folks have against conservative judges?

Posted by: Ron at October 27, 2003 12:00 PM | PERMALINK

PaulB- I will try this again.

I said:

Once again what is unprecedented is that the minority party has never had as much control over the Judicial Nominations process as the Democrats do right now.

You said:

Complete and total bullshit. The 1995 rules change allowed any single Republican Senator to kill any Clinton judicial nominee completely and totally. That is "control over the judicial nominations process," and it's far more control than the Democrats have today.

What part of MINORITY PARTY did you miss about my statement? The republicans controlled the senate in 1995 and put rules in place because of it. The republicans changed the rules because the voters put them in charge of the senate. The party in power in the Senate has much more power to control the nominations process. I think thats the part that democrats are missing. They feel like they should have the same power as the republicans did when Clinton was trying to pass nominees. The difference is that the Republicans controlled the senate for the last 6 years of Clintons presidency. If the Democrats can get enough votes to win back the senate then they can put in all the blue slip rules they want to but so far the voters have not shown any willingness to give them that power.

Posted by: Damon at October 27, 2003 12:03 PM | PERMALINK

You want a fair comparison look to the first 2 years of Clinton's presidency

You want a fair comparision, look at the strategy. Did the Democratic Congress during the Reagan and Bush I years take extraordinary measures to keep judicial seats empty so that a Dem president could fill them with left-wing extremist-activists? Hardly. The Republican plan all along was to block Clinton's nominees with the "blue-slip" policy of allowing a single Senator from the nominee's home state to take a nominee down. This kept the seats open so that when Bush got into office, they were available for him to fill, which he has tried to do, with some qualifified judges, but also more than a few right-wing activist-extremists. That is what's unprecedented, an organized legislative strategy to keep judicial seats open so the judiciary can be systematically slanted in one direction by activist appointees.

But it's okay. Keep pretending that there was no such strategy. It's not as if we need, on any personal level, to take you seriously.

Posted by: Demetrios at October 27, 2003 12:03 PM | PERMALINK

I asked this question in another thread and nobody touched it, so I'll ask it again: What do you folks have against conservative judges?

That they practice an ideology that's diametrically opposed to mine is a pretty good start.

It doesn't change the fact that Frist lies through his teeth about the judicial process.

Posted by: ChrisS at October 27, 2003 12:06 PM | PERMALINK

Damon wrote: "What part of MINORITY PARTY did you miss about my statement?"

Fair enough; I did get that wrong. However, you're still wrong, because the Republicans in the 60s, 70s and 80s had precisely the same power as the Democrats have today -- the power to filibuster. The only difference is that the Republicans only successfully filibustered a judicial nominee once, while the Democrats have now succeeded several times.

You're still trying to pretend that there is a difference between a failed filibuster and a successful filibuster. That's simply nonsense.

Posted by: PaulB at October 27, 2003 12:07 PM | PERMALINK

Do you really think was a grand plan?

Yes. It was fairly obvious, even at the time.

Did they know they were going to win the presidency?

Is that a loaded question, or what? They had an advance camp for their 2000 camp in the IC's office, attacking Clinton everyday in above-the-fold headlines that focused on his personal affairs over the issues of the day, and distracted from a fairly impressive economic record. They also had a pretty good idea that they could maintain their Congressional majority through a Gore term, especially as no party ever lost their Congressional majority on the basis of opposition to judicial nominees. So, it doesn't really matter whether they knew that Jeb's illegal purge of the voter rolls in Florida was going to pay off for them in 2000. It was surely worth a shot. I mean, this is the same party that invaded Iraq because they thought our occupying army would be showered with rose petals.

Posted by: Demetrios at October 27, 2003 12:09 PM | PERMALINK

PaulB- Bork and Clarence Thomas certainly altered the "long standing rules" of partisanship of our judicial nominations process. You aren't seriously sitting here saying that all judicial nominees were treated fairly until Clinton took office are you? The democrats controlled the Senate for a long time before Clinton took office. The Senate rules allowed them to change the rules once they had power.

Once again, how many Clinton nominees were blocked in his first 2 years of office when the democrats controlled the senate? Thats the true comparison. What did both parties do when they were not in control of the senate.

Posted by: Damon at October 27, 2003 12:09 PM | PERMALINK

Sorry JP, I missed this one
Otherwise, you would want the Republicans to make some restitution for their past bad acts, rather than allowing them to benefit from those acts.

I'd like to know what we could do, your suggestion is blocking Bush nominees for 5 more years (you'll have to re-elect him to get the full restitution). And then you think, what? That everyone will be calm enough to go back to a more equitable situation?

Posted by: Ron at October 27, 2003 12:10 PM | PERMALINK

Ron asked: "I asked this question in another thread and nobody touched it, so I'll ask it again: What do you folks have against conservative judges?"

Ron, the reason "nobody touched it" is that it's a "when did you stop beating your wife" kind of question.

Neither I nor the Senate Democrats have anything against conservative judges. Hell, they've let something like 120 of them through without resorting to any extraordinary means to stop them. In many cases, they've even voted for them.

When you've got a rigidly ideological judge, however, whose past decisions are suspect, who has demonstrated errors of judgment, and whom you have reason to believe has a specific agenda and cannot be counted on to view the matters coming before him or her impartially or judicially, then yeah, they've got something against them.

Posted by: PaulB at October 27, 2003 12:12 PM | PERMALINK

Damon seems to think that it's the duty of the minority party to roll over in the face of a deliberate court-packing strategy. The real comparison would be, what have minority parties done in the past in reaction to deliberate, long-term, systematic court-packing strategies by the opposition. But since that strategy is more or less unprecedented, there's no comparison to make.

Again, my obtuse friends: those seats remained open when the White House changed hands.

Posted by: Demetrios at October 27, 2003 12:13 PM | PERMALINK

Funny that the drafters of the Constitution left out your argument (but don't worry, they left out many things you consider sacred, i.e. the right to abortion on demand or homosexual sodomy).

And universal suffrage, and equal rights for minorities, and...

Yeah, Lord knows the Founding Fathers got it exactly right the first time.

Posted by: jesse at October 27, 2003 12:14 PM | PERMALINK

Demetrios
You have just immeasurably increased my faith in the abilities of the Republican party. I had no idea they were good enough to foresee taking the presidency and gaining a solid hold on the Senate (the House was a different story).

Half the things they do make me wonder that they still know how to breathe.

Posted by: Ron at October 27, 2003 12:15 PM | PERMALINK

Demetrios- there certainly has been an escalation of judicial nomination partisanship and neither party has its hands clean on that. You think it went to unreasonable lengths during clinton's presidency while conservatives think that Clarence Thomas and Bork was probably the beginning of it. The point is what happens in the next few years and what lenghts the parties will go to.

Posted by: Damon at October 27, 2003 12:17 PM | PERMALINK

Damon wrote: "PaulB- Bork and Clarence Thomas certainly altered the "long standing rules" of partisanship of our judicial nominations process."

Sorry, Damon, but you're wrong again. I know that Republicans with short memories like to pretend that Bork was the first, but that's not even close. In my own memory, you can find examples under Johnson and Nixon, for example, and I'd be willing to bet that you can find examples under Roosevelt, as well, and even earlier.

Partisan review of judicial nominations is not really new. What's new in my own memory is the concerted effort to pack the entire court system (as compared to Roosevelt's attempt to pack the Supreme Court), with a concerted effort to block Clinton's nominees and to prevent the Democrats from blocking Bush's nominees.

The rules changes since 1995 are the real "unprecedented" and "inexcusable" event.

"Once again, how many Clinton nominees were blocked in his first 2 years of office when the democrats controlled the senate?"

I don't know, Damon. Why don't you look it up and get back to me? Since the rules were different then, it really doesn't have much to do with the topic at hand.

"Thats the true comparison. What did both parties do when they were not in control of the senate."

Nope. The true comparison is what both parties do when they are in control of the Senate.

Posted by: PaulB at October 27, 2003 12:21 PM | PERMALINK

PaulB- during the first 2 years of Clintons presidency there was amply opportunity for the Republicans to fillibuster nominees. They could not get 41 people to go along with the fillibuster perhaps because many republicans were taking a principled stand that fillibustering lower court nominees is just the wrong road to go down. That no lower court nominee had ever been blocked by a fillibuster and it would simply be bad for the future of the judiciary to do it. They had the opportunity and didn't do it. I am not on here saying that its unconstitutional what the democrats are doing, just that it is unprecedented.

Posted by: Damon at October 27, 2003 12:23 PM | PERMALINK

I had no idea they were good enough to foresee taking the presidency and gaining a solid hold on the Senate (the House was a different story).

You ought to abandon this argument because it's dumb. So what if they weren't 100% sure they'd win? They knew they had a Democratic president now. All they had to think was: "Let's block all of Clinton's appointees now, because we might win in 2000."

Posted by: JP at October 27, 2003 12:24 PM | PERMALINK

Ron wrote: "You have just immeasurably increased my faith in the abilities of the Republican party. I had no idea they were good enough to foresee taking the presidency and gaining a solid hold on the Senate (the House was a different story)."

Ron, that's just silly. All you have to do is look at what the Republicans did during the final year or so of the Clinton years. The number of judicial nominees blocked during those final two years escalated dramatically.

Did they know that they would win the presidency? Of course not. But what was the worst-case scenario? If Al Gore had won, yeah, he'd be able to fill many of those blocked nominations. If a Republican won, though, they had a golden opportunity.

Even better, there was no real downside. Blocking judicial appointees, as the Republicans are currently discovering, is just not an issue that resonates with the electorate.

On a cost-benefit basis, it made a hell of a lot of sense to block Clinton's nominees.

Posted by: PaulB at October 27, 2003 12:24 PM | PERMALINK

PaulB says
whose past decisions are suspect, who has demonstrated errors of judgment, and whom you have reason to believe has a specific agenda and cannot be counted on to view the matters coming before him or her impartially or judicially, then yeah, they've got something against them.

Let's make sure we're on the same page here (and thanks for answering the question, it was not intended as a wife beating question)
1) suspect decisions: i.e. decisions that run contrary to established law. A judge exhibiting this is not qualified to be appointed.
2) errors of judgement: Is this bad procedure on the bench? (not qualified to be appointed) or personally repulsive behavior? (not qualified to be appointed).
- specific agenda/not impartial: If this shows through on their rulings, it falls under 1). If it is because of bias, everyone has bias. But as long as the judge rules appropriately by 1), the bias is under control.

Are we straight on ground rules?

Posted by: Ron at October 27, 2003 12:25 PM | PERMALINK

The blue slip rule is stupid. But since we won't be getting rid of it, how about 1 blue slip but you can only put a 3 month investigatory hold on a nomination.

Posted by: Sebastian Holsclaw at October 27, 2003 12:25 PM | PERMALINK

Damon wrote: " am not on here saying that its unconstitutional what the democrats are doing, just that it is unprecedented."

Damon, what part of "filibustering judicial nominees has been taking place for the past 35 years" are you having trouble understanding? Not only is it not unprecedented, it has quite a few precedents over the past 35 years. And it was the Republicans that started it!

Give me a flipping break....

Posted by: PaulB at October 27, 2003 12:27 PM | PERMALINK

PaulB says
Did they know that they would win the presidency? Of course not. But what was the worst-case scenario?

Ah, an act of desperation. That I can believe.

Posted by: Ron at October 27, 2003 12:27 PM | PERMALINK

Demetrios
You have just immeasurably increased my faith in the abilities of the Republican party. I had no idea they were good enough to foresee taking the presidency and gaining a solid hold on the Senate

I'm sure securing partisan control over the companies producing our vote counting machines helped them sleep at night though. At the very least I'm sure someone thought to ask, "Hey, what if we win?"

Posted by: Thumb at October 27, 2003 12:27 PM | PERMALINK

Not even desperation. Just a rational look at the possibilities. A potential really big upside, no discernible downside. Why not go for it?

Posted by: PaulB at October 27, 2003 12:28 PM | PERMALINK

I had no idea they were good enough to foresee taking the presidency

Not what I said, Ron. I said it was they surely thought it was worth a shot. No one who buys a lottery ticket does so with the foreknowledge that they will win. You don't know that you'll live long enough to collect your retirement savings, do you?

I know, this is fairly elementary stuff. I offer it only in the event that you are actually as obtuse as you seem to be.

Posted by: Demetrios at October 27, 2003 12:28 PM | PERMALINK

The blue slip rule is stupid. But since we won't be getting rid of it, how about 1 blue slip but you can only put a 3 month investigatory hold on a nomination.

Jeeze, he gets his own blog and suddenly he's reasonable. What's up with that?

Posted by: Thumb at October 27, 2003 12:31 PM | PERMALINK

I'd like to know what we could do, your suggestion is blocking Bush nominees for 5 more years (you'll have to re-elect him to get the full restitution).

No, that is not my suggestion. I said that it would take five more years to level the playing field. This doesn't mean I want it to happen that way. As someone else suggested earlier, Bush could have compromised with the Democrats on his appointments, since a good chunk of the vacancies he inherited were unjustly gained anyway. Maybe this would have worked, maybe it wouldn't have. But your attitude seems to be: "I'm not even going to try to think of a way to make things right, because I just don't give a crap." Again, the fact that you just don't care that the Democrats were shafted for six years shows that you're not really sincere about upholding the fairness of the appointment process.

And then you think, what? That everyone will be calm enough to go back to a more equitable situation?

Maybe not. But we'll cross that bridge when we get there. If I have to switch sides on this issue at that point, I will. But right now, it's the Republicans who are doing the shafting, and unlike you I'm not just going to close my eyes and pretend it didn't happen.

Posted by: JP at October 27, 2003 12:33 PM | PERMALINK

Ron wrote: "Are we straight on ground rules?"

Not really. For two reasons:

1. I'm not entirely sure what you're driving at. You need to take another look at it and reformulate whatever it is you're trying to say.

2. It's all subjective, which means that the ground rules are necessarily vague. For example, just about every judge gets overruled at one time or another during their career. This doesn't mean that they are rigidly ideological nor that their decisions are necessarily suspect.

Deciding when a nominee crosses that line is entirely a subjective matter. You simply cannot formulate a set of ground rules that are flexible enough.

Posted by: PaulB at October 27, 2003 12:35 PM | PERMALINK

paulB:The rules changes since 1995 are the real "unprecedented" and "inexcusable" event.

The democrats controlled the Senate for a long time and I agree with you that it was a principled stand on their part to not use any means necessary to block judicial nominees. But to say that altering the blue slip rule is "inexcusable" is just too much. Its a strange rule to begin with and modifying it for partisan gain is hardly the most egregious power grab in the history of the senate. To me the blue slip rule is no different than burying nominees in committee indefinately, its just a perk of having control of the senate.

Once again, the party in power changing the rules for their own benefit is far from unprecedented. I also think if the republicans wanted to turn down a clinton nominee they should have had the balls to do it in a full senate vote. No more leaving candidates to rot in committee. No more blue slips. If you want to turn a president down you do it in full view of your constituency.

Posted by: Damon at October 27, 2003 12:38 PM | PERMALINK

The blue slip rule is stupid. But since we won't be getting rid of it, how about 1 blue slip but you can only put a 3 month investigatory hold on a nomination.

Yeah, that's fine. I'm just saying, let's get all square first.

(I don't know if I'd go so far as to call the blue slip rule "stupid." Anyone who gets nominated is probably pretty connected in the local political community, so the home state senator might know the nominee personally or have some valuable background knowledge about him/her. That said, I agree that the cons outweigh the pros.)

Posted by: JP at October 27, 2003 12:40 PM | PERMALINK

Demetrios says
I offer it only in the event that you are actually as obtuse as you seem to be.

I've been called obtuse so many times on this thread that I'm beginning to develop a complex :)

If I'm obtuse, it's probably because I doesn't know any way out of this. The Dems are mad at the Repubs for blocking Clinton nominees, the Repubs are mad at the Dems for blocking Bush nominees. And there is no way to break this cycle. Unless you have an idea.

Posted by: Ron at October 27, 2003 12:41 PM | PERMALINK

One point: Bill Frist is NOT a liar. He is NOT a career politician (ahem, Spotted-Al Gore), which is just one of the core reasons that he is so well-received and revered.

Point 2: Nobody likes it when their pick gets torpedoed, especially when they think that it was for erroneous or for purely bipartisan reasons.

Posted by: bj at October 27, 2003 12:42 PM | PERMALINK

But to say that altering the blue slip rule is "inexcusable" is just too much.

"It was just the altering of one little rule, that's all. Not part of an uprecedented, systematic, long-term, deliberate court-packing strategy, not at all, not as far as my mind kin git 'round it, nosiree."

Posted by: Demetrios at October 27, 2003 12:43 PM | PERMALINK

PaulB- No lower court judicial nomination has ever been blocked through a fillibuster even though the republicans had ample opportunity to do so. You know this is unprecedented because you know what will happen if the democrats ever manage to control both the presidency and the Senate. 60 votes is the new standard for confirming judges.

Posted by: Damon at October 27, 2003 12:44 PM | PERMALINK

Demetrios- Its part of a long term strategy to make the judiciary more conservative. Further, changing the rule was an attempt to make the judiciary more conservative without taking public criticism for it. I am not denying that at all.

Posted by: Damon at October 27, 2003 12:47 PM | PERMALINK

Damon wrote: "No lower court judicial nomination has ever been blocked through a fillibuster even though the republicans had ample opportunity to do so."

Damon, you are being willfully obtuse. The Republicans tried to block quite a few lower court nominations through filibuster. They failed because the Democrats were able to muster the 60 votes necessary to achieve cloture.

You are still pretending that there is a difference between a successful filibuster and a failed filibuster.

Posted by: PaulB at October 27, 2003 12:50 PM | PERMALINK

Unless you have an idea.

I've already offered several: Bush nominates more moderate judges; or re-nominates the Clinton nominees. Not gonna happen, though. Why? Because it's a tit-for-tat cycle? No. Because it was a deliberate long-term strategy of the Republicans all along. You (and Damon) insist on pretending that it's just run-of-the-mill partisanship, and will no doubt continue to do so until this thread trails off into oblivion. This is the only way that you can maintain the pretense that the Democrats are engaged in some kind of unprecedented partisan savaging of Bush's judicial nominations. But you are wrong on these counts. What the Democrats are doing is a fairly mild counter to the obvious Republican court-packing strategy. I know it doesn't serve you to admit this.

I wrote a letter to my Dem Senator in the opening days of the Bush admin urging a policy of filibustering all Bush nominees until he either a) re-nominated Clinton's blue-slip victims or b) won a presidential election. Even that, in my opinion, would be a measured turnabout for the Republican blue-slip policy of 95-01, and for the OT offense of Jeb's Florida voter purge. The Democrats if anything are being too mild in the face of an unprecedented court-packing effort.

Posted by: Demetrios at October 27, 2003 12:51 PM | PERMALINK

Damon wrote: "But to say that altering the blue slip rule is "inexcusable" is just too much."

Damon, there is a reason that word was in quotes.

Posted by: PaulB at October 27, 2003 12:52 PM | PERMALINK

Its part of a long term strategy to make the judiciary more conservative. Further, changing the rule was an attempt to make the judiciary more conservative without taking public criticism for it. I am not denying that at all.

"Deny" maybe not. "Argue as if it's not an issue" definitely.

Posted by: Demetrios at October 27, 2003 12:54 PM | PERMALINK

Please continue with the moral equivocating if it makes you feel better. Both the Dems and Repubs sound like their wrong on this issue. It's great that you pointed out this Blue Slip thing, but you should've condemned your own parties behavior as well.

-Indie

Posted by: Indie at October 27, 2003 12:56 PM | PERMALINK

PaulB- thats the difference we have. The democrats were able to muster the 60 votes necessary to achieve cloture because MANY REPUBLICANS REFUSED TO PARTICIPATE IN A FILIBUSTER. Its not as if this whole 2 party system is a recent development. In the past republicans simply refused to engage in a filibuster of a lower court nominee on general principle. Now the rules have been changed. Republicans who would have opposed a filibuster of a democratic nominee in the past will now support it because now there is PRECEDENT to support it.

Posted by: Damon at October 27, 2003 12:58 PM | PERMALINK

Demetrios- Changing the blue slip rule to me is exactly the same as democrats burying Estrada in committee after Jeffords switched parties. They are both trying to achive partisan goals after they held control of the senate and were entitled to use the rules to their advantage.

The republicans are making a big effort to make the judiciary more conservative. The democrats are making a big effort to make the judiciary more liberal. The Republicans control both the presidency and the Senate and just have a lot more tools at their disposal to achieve their goal.

Posted by: Damon at October 27, 2003 01:04 PM | PERMALINK

Changing the blue slip rule to me is exactly the same as democrats burying Estrada in committee after Jeffords switched parties.

Is one a reaction to the other?

The republicans are making a big effort to make the judiciary more conservative. The democrats are making a big effort to make the judiciary more liberal.

Actually, Clinton's nominees were overall fairly moderate -- even conservative. Fact is, the two parties are not really engaged in the same kind of activity at all. Republicans are trying to pack the courts with idealogues and they have exhibited a systematic, long-term legislative strategy to do so. This politicizes the judiciary to a degree it has not really been before.

Democrats did not attempt to block Republican presidential nominations to keep the seats open during the Reagan/Bush years. You can't show that they did, but you continue to take the old, predictable line of "it's all part of the game." The Estrada episode is not tit-for-tat, but a mild attempt to block the strategy, which has been more or less successful, despite all the whining from Snow, Hume, and other partisan conservatives masquerading as newsmen.

Posted by: Demetrios at October 27, 2003 01:16 PM | PERMALINK

"Why are you trying to pretend that there is a vast difference between a failed filibuster and a successful filibuster?"

LOL!!!

Lemme take a crack at it... because in the former case, the nominee is confirmed and in the later case the nominee is NOT confirmed!

My first real laugh all day. Thanks.

Posted by: Al at October 27, 2003 01:21 PM | PERMALINK

"Actually, Clinton's nominees were overall fairly moderate -- even conservative."

No. ACTUALLY, Clinton's nominees were overall extremely liberal. Bush's nominees are extremely moderate -- even somewhat liberal. Actually.

Posted by: Al at October 27, 2003 01:23 PM | PERMALINK

ACTUALLY, Clinton's nominees were overall extremely liberal. Bush's nominees are extremely moderate -- even somewhat liberal.

I like how the all-caps helped you make your point.

Anyway, All-Caps Al's here. So long, thread.

Posted by: Demetrios at October 27, 2003 01:25 PM | PERMALINK

I think the point is that the Republicans are going on TV and trying to pretend that the Democrats are the only ones being Bad Guys here and, with the "unprecedented" charge, are the only ones who have ever BEEN or even tried to be Bad Guys.

They're telling a lie when they say that. Furthermore, it is a nasty lie.

Kevin is not necessarily defending the Democrats' behavior (past or present), he's simply trying to illustrate why the Republicans are LYING.

Posted by: Julia Grey at October 27, 2003 01:31 PM | PERMALINK

The Senate Democrats in 1975 voted to change the filibuster rules. The Democrats held 60 seats to the Repubs 38 seats. The old rule required a 2/3 majority (67 votes) to overide a filibuster. The new rule required only 60 votes. Anyone see an odd coincidence? An "unprecedented" power grab by the majority party - I am shocked!

In 1975 the senators changed the filibuster requirement from 67 votes to 60, after concluding that it only takes a simple majority to change the rules governing their proceedings. As Senate Majority Leader Mike Mansfield (D-Mont.) said at the time: ''We cannot allow a minority'' of the senators ''to grab the Senate by the throat and hold it there.'' Senators Leahy, Kennedy, Byrd and Biden all agreed.

from:

Senate Rules Abused to Keep Filibusters
by Ronald D. Rotunda (a law professor at George Mason University, is a senior fellow with the Cato Institute) July 7, 2003

Posted by: Kevin G at October 27, 2003 01:37 PM | PERMALINK

Al wrote: "No. ACTUALLY, Clinton's nominees were overall extremely liberal. Bush's nominees are extremely moderate -- even somewhat liberal. Actually."

ACTUALLY, judicial nominees for the past several presidents were evaluated in a study done some years ago. Clinton's nominees scored closest to that paragon of liberalism Gerald Ford.

ACTUALLY, the Bush administration is on record as wanting to turn the judiciary further to the right and their nominations have been selected on that basis.

Posted by: PaulB at October 27, 2003 01:42 PM | PERMALINK

Al wrote: "Lemme take a crack at it... because in the former case, the nominee is confirmed and in the later case the nominee is NOT confirmed!"

Nice, Al. Too bad that it had nothing at all to do with the conversation. You do remember the topic at hand, don't you? The completely "unprecedented" way that the Democrats are using the filibuster? Too bad it isn't unprecedented. On that score, there is absolutely no difference between a failed filibuster and a successful filibuster. It's still a precedent.

Did you actually have a point to make, Al?

Posted by: PaulB at October 27, 2003 01:46 PM | PERMALINK

PaulB
I was wondering if we are together on why judges might be rejected.

I am going to procede that we are both thinking the same. Judges failing under points 1 and 2 should not even be nominated. There needs to be a vetting process. (Bush is not using the ABA, but the vetting process should be acceptable to both parties to insure that nominees do not fail under points 1 or 2).

Point 3, bias, however, is unavoidable. You will necessarily not like my candidates and I will necessarily not like yours. This cannot be a criteria or no judge will ever be appointed (I'm assuming a continuation of the 60 vote thing).

I will now combine your with Demetrios who says
Bush nominates more moderate judges; or re-nominates the Clinton nominees.

It cannot be expected that a president of one party will bow to the wishes of the other party. If a Dem is elected, should I expect him to nominate some conservatives to keep me happy?

Demetrios, your point about the Repubs 'starving' the judgeships so they can now load the benches with conservatives is at least noted. I'm still not sure I buy into the 'grand plan' thing but I appreciate what you are saying.

Posted by: Ron at October 27, 2003 01:48 PM | PERMALINK

Damon wrote: "PaulB- thats the difference we have. The democrats were able to muster the 60 votes necessary to achieve cloture because MANY REPUBLICANS REFUSED TO PARTICIPATE IN A FILIBUSTER"

And your source for this is?

Sheesh, Damon, you're not even making sense. Even if it were true, it's irrelevant. The precedent has been set, and it was set by Republicans. The fact that they were able to do so successfully in just a couple of cases does not invalidate the precedent.

Sigh...why do I get a feeling I'm talking to an AI project and not to a real person?

Posted by: PaulB at October 27, 2003 01:49 PM | PERMALINK

demetrios- how liberal or conservative a nominee is has to be the most subjective thing in this entire discussion. Shockingly enough a democrat thinks that Clinton had very moderate selections, you don't think that has much to do with the idea that you agreed with the judicial philosophy of most of the judges?

Actually, I think that Clinton probably should have nominated more moderate judges because his party did not control the senate for the last 6 years of his presidency. When you don't control the Senate you should be forced to nominate judges that the Party in control approves of. Thats the point of all this to me, democrats don't like the reprocussions that come with losing control of both the Senate and the Presidency. They want to pretend that you should have the same power whether you control the senate or not.

Posted by: Damon at October 27, 2003 01:55 PM | PERMALINK

PaulB- There were more than 41 republican Senators and they did not filibuster any Clinton nominees. That means that some republicans would not participate in a filibuster. What cite do you need past that? Do you really think that all clinton nominees his first 2 years were so far to the right that the Republicans voted for them unanimously? Do you think that when republicans did not like a nominee that clinton withdrew it for good will? There were nominees that republicans did not want passed that they did not filibuster. Next time they are in the same position, they certainly will filibuster. Thats because precedent has changed.

Once again no lower court nominee has ever been blocked by a filibuster. To pretend that blocking Estrada through a filibuster isn't changing precedent is rediculous. 60 votes is the new standard for judicial confirmations.

Posted by: Damon at October 27, 2003 02:07 PM | PERMALINK

Damon, why are you ignoring 35 years of history and focusing exclusively on 1993-1995? The Republicans have tried a number of times to filibuster judicial nominees over the past 35 years. They even succeeded once.

Accordingly, the precedent has been set and your assertion that the Democrats are "changing precedent" is simply wrong.

This is just stupid. Can we get some smarter monkeys, please?

Posted by: PaulB at October 27, 2003 02:10 PM | PERMALINK

Comparing the "new" 60-vote standard to the manipulation of the blue slip rules is a crock. The overwhelming number of nominees -- Democratic and Republican alike -- who make it to the floor get well over 60 votes routinely, and damned well should. I can't pretend to read the minds of the Republicans who would not have supported hypothetical filibusters of Clinton nominees, but looking at the actual appointments, it would have taken an enormous amount of gall to filibuster, or even openly vote against, most of them, so it's hard to say that any principled opposition to the filibuster is involved. (The Democrats pick their spots, too. A remarkably unqualified district court nominee from my home state is getting the support of my home state Democratic senator on the judiciary because she's MERELY unqualified.) Better to do the job quietly, which you can when you write the rules.

Posted by: C.J.Colucci at October 27, 2003 02:13 PM | PERMALINK

Dang, everybody gave up on this post?

And just as my point became clear to me (while I was eating an afternoon burrito). What we have here is a Mexican standoff- you Bork my judges and I'll Bork yours. And nobody wants to stop Borking first.

How adult of us.

Posted by: Ron at October 27, 2003 02:49 PM | PERMALINK

"Damon, you are being willfully obtuse. The Republicans tried to block quite a few lower court nominations through filibuster. They failed because the Democrats were able to muster the 60 votes necessary to achieve cloture."

Really, when did this happen? Did it happen to more than one judge?

Posted by: Sebastian Holsclaw at October 27, 2003 02:56 PM | PERMALINK

I also find it odd that Republicans howl that Democrats are playing politics with the whole nomination process. It is political--Constitutionally. If the framers really wanted the President to be able to appoint his own justices without oversight, why didn't they structure the process that way?

Posted by: Emma at October 27, 2003 03:34 PM | PERMALINK

Something like 15 times or so since 1968, Sebastian. Fortas was just the first of quite a few.

Posted by: PaulB at October 27, 2003 03:37 PM | PERMALINK

I'm not sure if anyone pointed out that many Clinton appointees were confirmed because he compromised and nominated less left leaning judges. This is something Bush has refused to do, insisting on pushing very far right nominees again and again, even when it was clear they would be stopped.

Also, let's look at the stakes of judicial appointments. Life time judges have critical power on both the lower and Supreme Court. Bush v. Gore showed that judges will make terrible decisions to put a favored party in power. A 3 judge panel chose Starr, an obvious partisan to hound Clinton. Judge Bates (Starr's deputy) blocked the GAO Cheney lawsuit (after successfully getting documents from Clinton.

The Dems must oppose ideologues who will make bad decisions to maintain or acquire power.

Posted by: claudius at October 27, 2003 03:43 PM | PERMALINK

"'. . . it now takes 60 votes to pass a judge' don't you understand and/or think was within the 'Original Intent' of Art. II, Sec. 2, Clause 2 in the U.S. Constitution?"

Charlie, one of the problems with you "original intent" guys is that you usually get "original intent" wrong.

It does not take 60 votes to pass a judge--what it takes are 60 votes to stop debate on a judge.

Art. 1 Sec. 5 says:
"Each House may determine the Rules of its Proceedings"

There is nothing odd or unusual about requiring a supermajority to stop debate--if I recall correctly, Robert's Rules specifies a 2/3 majority to pass a motion for previous question. Interposition of procedural obstacles to block the will of the majority in a parliamentary body was hardly unknown to the founding fathers.

In fact, the historic practice of the senate from the First Congress to 1917 was unlimited debate, determined minorities twarting majorities on legislation and even judicial appointments routinely throughout that period.

So, yeah, I doubt any of the founding fathers would be surprised or shocked by a Senate rule requiring 60 votes to stop debate on a nomination.

Posted by: rea at October 27, 2003 03:52 PM | PERMALINK

"you Bork my judges and I'll Bork yours"

Well, for the last time, the reason Bork wasn't put on the Supreme Court was not because of any trumped up slander--the reason is that Bork's views on legal issues were rightfully regarded as outside of the mainstream--as anyone who has read almost anything Bork has written will be aware.

Posted by: rea at October 27, 2003 04:01 PM | PERMALINK

"I'm not sure if anyone pointed out that many Clinton appointees were confirmed because he compromised and nominated less left leaning judges."

I think no-one pointed that out because it isn't true. He did not face repeated filibusters, nor did he compromise on his nominations. Please. Did he nominate anyone who did not confirm to his rigid litmus test on Roe v. Wade?

Posted by: Sebastian Holsclaw at October 27, 2003 05:03 PM | PERMALINK

If the two blue slips courtesy is still in play why did not the California Sentors use it on Janice Rogers Brown?

Posted by: LuigiBob at October 27, 2003 05:58 PM | PERMALINK

3) Was Thurmond's filibuster sucessful (remember, he's dead now) in keeping the Fortas nomination from a full vote before the Senate?

Wow -- that has got to be the toughest criterion for "success" that I've ever seen. If only he'd just kept talking a little longer, he'd still be alive!

Or were you saying that only death could stop a Strom Thurmond filibuster? 'Cause yeah, I'd kinda have to agree with you there. We always were mighty proud of his ability to talk folks' ears off, even during the last couple decades when no one could understand a damned thing he was saying.

Posted by: Ray Radlein at October 27, 2003 07:25 PM | PERMALINK

And just as my point became clear to me (while I was eating an afternoon burrito). What we have here is a Mexican standoff- you Bork my judges and I'll Bork yours.

This just "became clear" to you? Hardly; it's all you've said throughout the thread.

Posted by: Demetrios at October 27, 2003 09:13 PM | PERMALINK

Sebastian said: I think no-one pointed that out because it isn't true. He did not face repeated filibusters, nor did he compromise on his nominations.

Damon chimed in: Shockingly enough a democrat thinks that Clinton had very moderate selections, you don't think that has much to do with the idea that you agreed with the judicial philosophy of most of the judges?

Shockingly enough, PaulB was right at 01:42 PM. A study done in the last few years (which I can't find offhand) showed that Clinton was overall pretty moderate, even slightly right of center, in his nominations. It's not like it's a big deal. I know it's important for you guys to pretend that someone like Pickering or Owen is a "moderate". Framing the debate to the right and all that good think-tank claptrap.

Anyway, Damon, can you show me how the Democratic Congresses of 1981-1993 changed long-standing Senate rules on judicial nominations to keep Republican nominees from being approved so that the seats would stay open for an eventual Democratic president? Look, if the right just wants to scrap all civility, trash every single rule and convention and piss all over the political process so you can have a legislative, judicial and executive stranglehold over the government despite the lack of any kind of decisive favor among the voting populace for your ideologies, then you should be honest about it; just come right out and say it. I could respect your honesty on that count. It would only mean you're just like every other power-hungry, greedy, small-of-spirit scum-sucker to walk the earth in the pitiable history of humanity, and show how completely incapable conservatism is of rising above our lowly station among the animals to embrace a higher cause. But at least I could respect the naked honesty. Go ahead. Say it. Rules, conventions and laws are just so much ephemera. All that matters is power. Go on. You'll feel better.

Posted by: Demetrios at October 27, 2003 09:30 PM | PERMALINK

The notion that this is somehow the Democrats’ fault because they refused to allow the appointment of a raving loon to the USSC is laughable. Bork was an unsuitable candidate (read him, his opinions are right out of a liberal comic book description of reactionary conservatism). Perhaps the conservatives trying this idiotic line might also consider looking up the Saturday Night Massacre to see why else he was unsuitable.

Sebastian is again …um… being loose with the facts. Clinton’s nominees weren’t filibustered, so that means the Republicans played fair? No Sebastian, Clinton’s nominees weren’t filibustered because they were bottled up in committee for months and years until he gave in and nominated candidates the Republicans would accept. It only took one Senator to block a nomination under Hatch rules – and you people are whining even though it takes the Democrats 41 votes to block your extremist ideologues?

Posted by: Lori Thantos at October 28, 2003 12:11 AM | PERMALINK

Damon:
You why Republicans did not filibuster Clinton nominees when they were in the minority. PaulB answers that there were filibusters, but they failed.

The first thing you want to do here is acknowledge that he is correct, than say that you are restating your question and want to know why they did not successfully filibuster Clinton nominees, while Democrats have successfully filibustered Bush nominees.

The answer has been given several times in the course of this thread, but it does not appear in Kevin's chart. That is, Republicans were able to blue slip a number of nominees before 1994. Their attempts to filibuster came only after the were unable to get two blueslips against a nominee. The situation is different now, because Orin Hatch claims to be observing the two blueslip rule when he is not doing so. That means that there are cases when judicial nominees receive two blueslips and are still brought to the floor. In such cases, it is easier for Democrats to mount a successful filibuster... but not that easy, because it has only succeeded a handful of times. Like Republicans before 1994, they have launched very few filibuster attempts.

Charlie:
JP: Would you care to point out any fault in my logic? Or, is the phrase "most illogical non sequitur" kinda like a double negative - rather than simply redundant - and you actually are saying you agree with me?
The fault in your logic is precisely this: in answer to the question of why Fox and Bill Frist are describing a situation with ample precedent as "unprecedented", you replied that there is nothing about 60-vote thresholds in the Constitution (full quote below). This is a non sequiter because precedent and original intent are not the same thing. There are plenty of things that are not in the Constitution that now have precedent, and calling them "unprecedented" would be false, regardless of original intent. Do you not understand this??

Here's your quote:
What part of ". . . it now takes 60 votes to pass a judge" don't you understand and/or think was within the "Original Intent" of Art. II, Sec. 2, Clause 2 in the U.S. Constitution?"

You might also want to read what George Will said in defense of blocking nominees that were supported by a majority of the Senate during the Clinton administration. Surprisingly enough, Mr. Will now seems to have forgotten his support for such a tactic.

Posted by: Keith at October 28, 2003 12:24 AM | PERMALINK

rea says
the reason Bork wasn't put on the Supreme Court was not because of any trumped up slander...

I was just using it as an expression of speech, there was no intent to drag the Bork specifics into this.

Demetrios says
Hardly; it's all you've said throughout the thread.

If I was clear, I'm sorry I kept repeating myself. But the replies seemed to indicate that everybody was fine with this situation, and I just have a hard time believing that a standoff over confirming judges is not a problem.

But, I'll move on. I have agreed that the Repubs started this. When they did everything they could to block Clinton nominees I saw a problem coming. It was pretty clear to me that you can't do things like that without retribution.

Kevin D. wants to change back to 1 blue slip (but once again, he only seems to like 1 blue slip when a Repub is in the White House), and it looks to me like we shouldn't have blue slips at all (and I think that is good no matter what flavor is President. 1 or 2 Senators being able to kill a nominee is not advice and consent). So I don't see where another change in the number of blue slips offers anything that approaches a sustainable solution.

Another idea was to continue to filibuster to block Bush nominees. Then the Repubs will do all they can to block Dem nominees (wrongly since the Repubs started this, but let's face the facts), then the Dems will block Repubs, ad infinitum. Hardly a way to break the standoff.

You want Bush to re-nominate some blue slipped Clinton nominees and/or nominate more "moderate" judges. Once again, reality says the Repubs won't do this. The Repubs will say that the Clinton nominees were blue slipped for a good reason, and they will say that a President gets to nominate who they want (don't bother pointing out the Repub inconsistency here, I see it).

I don't see a feasible, sustainable answer.

However, I'm feeling magnanimous this morning; I'll agree that the Repubs should work with the Dems for some more moderate candidates (in penance for starting this). Would you then agree that the Dems should stop blocking judges just because (surprise!) they're conservative?

Posted by: Ron at October 28, 2003 06:30 AM | PERMALINK

Would you then agree that the Dems should stop blocking judges just because (surprise!) they're conservative?

Within that one innocent sentence lurks a deadly maze of traps...

May I ask that, before anyone answers, you make clear what you mean by "blocking judges just because...they're conservative"? See PaulB's 12:12pm post for further discussion of this point.

Posted by: Anarch at October 28, 2003 11:27 AM | PERMALINK

Deadly maze of traps? Eugh. My metaphor-maker is all mangled :/

Posted by: Anarch at October 28, 2003 11:28 AM | PERMALINK

Anarch
I did address PaulB's 12:12 post at 12:25, with Paul's reply at 12:35, and me next at 1:48.

Unfortunately, the issue was not discussed further. My basic point was going to be that there are things which should disqualify someone from becoming a nominee:
-Rulings contrary to established laws/precedents
-Bad courtroom procedure
-Unsavory personal characteristics
These potential candidates should be screened out before the Senate has a shot at throwing them out.

However, just because a judge holds personal bias that contradicts yours is not grounds for rejection. Now if that bias causes them to rule contrary to established law/precedent, then they run afoul of the first point above and should not be considered.

But if personal beliefs alone are grounds for rejection, no judge will be confirmed under the 60 vote thing that we have now. The Repubs will block all liberals (and remember that moderates will look liberal to them) and the Dems will block all conservatives (and remember that moderates will look conservative to them).

BTW I liked the deadly maze of traps thing, adding a little color is always good (or, even a lot of color)

Posted by: Ron at October 28, 2003 11:47 AM | PERMALINK

Ron,

I was in a rush earlier and didn't properly lay forth my point; sorry for the confusion. The key passage from PaulB's post that I wished to cite is the following:

Neither I nor the Senate Democrats have anything against conservative judges. Hell, they've let something like 120 of them through without resorting to any extraordinary means to stop them. In many cases, they've even voted for them.

The problem I had with your post was the following:

Would you then agree that the Dems should stop blocking judges just because (surprise!) they're conservative?

Your syntax there indicates that you believe that the Democrats are engaged in an ongoing process of blocking judges premised solely on the fact that they disagree ideologically. This, however, flies in the face of what PaulB pointed out, namely that the Senate Democrats have already let ~120 conservative judges through (btw, does anyone have a cite on that?). As such, your claim is false on its face: the Democrats are clearly not blocking judges based purely on their ideology -- too many have gone through to make that statement true -- so there must be something else at work.

Unfortunately, I've got to run off (again) so I can't complete this post; consider it a work in progress until I get back :)

Posted by: Anarch at October 28, 2003 04:18 PM | PERMALINK

Kevin,
You're revising history about pre-1994 blue slips. In Joe Biden's own words in a 1989 letter: "The return of a negative blue slip will be a significant factor to be weighed by the committee in its evaluation of a judicial nominee, but it will not preclude consideration of that nominee unless the administration has not consulted with both home state senators prior to submitting the nomination."

Posted by: Bird Dog at October 28, 2003 05:56 PM | PERMALINK

anarch

I think we will now probably get into a disagreement over what constitutes conservative.

Let me try to explain: I have bias, you have bias. Our biases color what we see. For example: I find Ann Coulter funny, she has good points mixed in with a lot of hyperbole (kinda like a political cartoon). I find Paul Krugman to be a moon-barking looney. I recognize that he has extensive economic background, but he has turned into a mouth breather since Bush was elected. Your position will be somewhere around the polar opposite.

What the right sees as a conservative and what the left sees as a conservative are two entirely different animals. If the Senate Dems let a "conservative" through, I probably will not agree that they were conservative.

For a judge example, Clarence Thomas. I don't see him as hard right, I'll admit he's slightly conservative. In my eyes, the attempted block of his nomination to the Supreme Court was solely on idealogical grounds, it had nothing to do with his qualifications.

Posted by: Ron at October 29, 2003 05:42 AM | PERMALINK

*sigh* Ron, based on your standards (rulings wildly contrary to established precedent), the nominees currently being filibustered should never have been nominated. Same with Bork. And, for that matter, Rehnquist. Please look it up.

Posted by: Anon at November 5, 2003 04:13 AM | PERMALINK

167 judges confirmed since Bush took office. 4 filibustered so far; JRB will be #5.

100 judges were confirmed during the 17 months of Democratic majority, 67 during the same span of Republican majority. Read that again.

The Democrats have blocked 4 (or 5) of 167 Bush nominations.

The Republicans blocked 35% of Clinton's.

The average confirmations per year for the Republicans under Clinton was about 35. The average for the Democrats under Bush, twice that.

From 1995 to 2000, under Republican control, the number of vacancies doubled.

Since Bush took office, the number of vacancies on the bench has been halved.

And it used to take 100 votes to confirm a judge, then 67. The cloture rule didn't exist until 1917, as rea noted, and was modified to 60 in 1975. Thus the general idea of one Senator being able to hold up business certainly can be construed as "original intent" (for those who insist on such), since it was the earliest members of the Senate who established the tradition of unlimited debate. See also Washington's comment to Jefferson on saucers, tea, and legislation.

If I were a conservative, I'd get awfully tired of being wrong. But then again if I were a conservative, I'd probably be too dumb to notice.

Posted by: HughR at November 13, 2003 06:27 AM | PERMALINK

One correction in all this verbiage: Hey, news flash: it's always taken 60 votes to pass a judge, and it's worked pretty damn well with obvious exceptions provided the President makes reasonable appointments (which can include political leanings, but doesn't include ideologues). Bush has had many judges passed with 60 votes, so don't act like all of a sudden the 60 vote requirement is oppressive. It's only been a handful of judges that have been stopped by this requirement, and they sure aren't middle of the road, that's for sure.

This is untrue. For one thing (as someone above noted) it used to take 67 votes to end debate, but more importantly, Senate rules didn't allow filibusters on judicial nominations until the 1950s.

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