The Judicial Confirmation Wars: What's Next?
By Pejman Yousefzadeh Posted in Republicans — Comments (32) / Email this page » / Leave a comment »
Now that two days have passed since the announcement of The Deal and now that we have heard conservatives complain that they got snookered, liberals complain that they got snookered, conservatives crow about how they got the better of the deal, liberals crow about how they got the better of the deal and people from both sides crow about how the deal will allow us to prevent the Norman conquest of England in 1066 from happening in an alternative universe, let us examine--from a right-of-center perspective--how the deal might be exploited to the advantage of Republicans.
And yes, I said the word "exploited." Game theory and simple common sense tell us that the other side will be trying to spin and exploit, so Republicans should as well. And yes, I know that there remain a lot of people on the right-of-center side of the political spectrum that are quite upset about The Deal. I respect their beliefs, but now is the time to be a Stoic, understand that we have been dealt a certain hand and go forward towards figuring out how to win the whole pot. This is power politics and it is high time for some political strategy.
So here is what I would propose in terms of a political battle plan:
Preemptively define the word "extraordinary" to mean just that. Filibusters that occur as a result of a difference in philosophical worldviews between a judicial nominee and a Senator or group of Senators are not "extraordinary." They are run-of-the-mill. No one expects the nominees selected by a Republican President to be in accord with the views of the Democratic Senatorial Caucus. Therefore, filibusters that occur because of ideological differences should be considered entirely ordinary and not worthy of any heightened degree of concern. This is important because immediately after the deal was announced, Senate Minority Leader Harry Reid argued that "each filibuster is extraordinary." His statement is a silly one because Logic screams at us that if all filibusters are extraordinary, then there is no such thing as "extraordinary." There is just "ordinary." Think of this as the "if everyone is special, that means no one is" line of argument rendered in an expressly political context.
The trouble is that while Logic may scream this conclusion at us, it still needs to be hammered home in the realm of public opinion. So Republicans must work to do just that. We should stress that if the filibuster is only to be used in "extraordinary" circumstances, then it follows that it should be used sparingly. And if it is not used sparingly, then the deal is being broken. We think that this deal--at its best--will make judicial filibusters safe, legal and rare. If the latter condition is not met--and the latter condition must be explicit--then there has been a breach. Public opinion must be prepared to accept that.
Know your audience and argue appropriately. It is one thing to argue to the public about the fundamental fairness of giving each nominee an up-or-down vote. This argument should be made continuously--not least because of the decency inherent in it. But this is not the only argument that we should be making, and the public is not our only audience. We are also arguing to Senators and seeking to influence their actions. To do so, we must remember that for all the jokes and barbs comparing politicians to used-car salespeople, the conceit in Washington is that if you don't have your word, you don't have anything of value whatsoever. Trust is the coin of the realm--not least because trust builds collegiality and collegiality is a state of being oft-strived for in Washington. Indeed, it is perhaps safe to say that this deal was primarily made because Senators did not want to face the alternative of not being collegial with one another (a somewhat understandable feeling given that they are forced to work with one another and given that today's enemy may be tomorrow's ally on some legislative project or other).
Therefore, it is not enough to lecture Senators on Constitutional niceties--though it should be enough. It is not enough to lecture Senators on basic fairness and decency in the confirmation process--though it should be enough. Senators should be reminded as well that if this deal is broken--by, for example, making the "extraordinary" into the completely ordinary per the discussion above--then those who broke the deal are breaking their word and threatening institutional collegiality. Is this inside-baseball? Yes. Will the public at large care? No, and that is why a parallel argument should be used for the public (focusing on fairness and decency in the confirmation process). But inside-baseball affects votes and in the end, it is votes that will decide how the judicial confirmation wars are played out. We are not ultimately aiming for favorable poll results, though we want to have them. We are not ultimately aiming for philosophical and Constitutional debating victories, though they are gratifying. We are looking for raw, powerful, meat-and-potatoes votes to swing our way and we need to carefully craft our arguments to appeal to that insular class of people called Senators who wield those votes.
Remember your Churchill. One of the reasons I disagree with the doom-criers on my side of the political divide when it comes to adjudging The Deal is that so many of them seem to think the fight is over. It is not. The Deal does not represent the end. Nor is it the beginning of the end. Rather, it is the end of the beginning. So understand that the judicial confirmation wars are not over. They are only just heating up. Laser-beam attention is now focused on Senate votes for people like Priscilla Owen (who will now be a judge), Janice Rogers Brown and William Pryor (who will soon be judges) and Brett Kavanaugh (who will or will not be a judge depending on the source with whom you speak). Laser-beam attention is now focused on whether Chief Justice Rehnquist will retire and who his replacement will be. And laser-beam attention is now focused on whether The Deal will last.
Which means it won't.
The deal will be broken. It will be broken in all likelihood by a filibuster which Republicans will claim stretches the definition of "extraordinary." Republicans will therefore have to be prepared to put out the reasons for the breach, the public-face argument that basic fairness is being breached and the inside-baseball argument that because of the breach and its attendant abuse of the term "extraordinary," trust and collegiality in the Senate are threatened. Republicans should not precipitate a breaking of The Deal. But they should understand that as surely as the sun rises in the East, The Deal will not last and that contingency plans have to be put in effect immediately. This means that the public arguments for the post-Deal era must be ready to go and honed to a sharp point. And as an important side-point, this means--and I know it is painful for some to make this argument, but it needs be done--that part of the response to a breach of this deal is that "it undermines all of the hard work, sweat, tears and toil that good and decent people like John McCain put in towards trying to make this compromise work." Conservatives who have never had a nice thing to say about John McCain and wouldn't if a gun was put to their heads will have to make this argument. Yes, it is a bitter thing for some to say. I understand. But do you want to avoid bitterness or do you want to win?
So these are my thoughts. I welcome others--needless to say. The only thing I ask is that you don't begin your thoughts with "This Deal Sucks!" or "I'll Never Vote Republican Again!" If those are your beliefs, I respect them. Really. Honestly. But there is strategizing and exploiting to be accomplished and outrage--no matter how focused--is never an acceptable substitute for a plan.
« Burn the Witch — Comments (18) | “He’s the third senator from New York” — Comments (33) »
The Judicial Confirmation Wars: What's Next? 32 Comments (0 topical, 32 editorial, 0 hidden) Post a comment »
so quickly and transparently setting up this fight so soon in his 2nd term?
Except for the fact that these people have been nominated since the beginning of Bush's first term. Completely ridiculous to state that this is a new problem.
With phrases like "subvert Roe V. Wade", it's pretty clear where you're coming from on this issue. That said...
constitutionality of present abortion law
I still have yet to receive a copy of the Constitution with the right to abortion. Or privacy for that matter.
Then the conservative grassroots could push a specific "short list," get the 7 GOP deal-makers to comment on specific names, and get Bush to nominate someone from that list.
And then perhaps we can finally get rid of that pesky Article II Section 2 of the Constitution and strip the Executive of more power. Which is exactly what you are proposing.
any stand that is taken will be weakened in a deal. conservatives can make no stand. you say we should accept the deal as a positive, and now make a stand. for what - the next positive deal. republicans have taken any firm principled ground from the conservatives. now, neither party is founded on principles. good luck making a choice in the next election.
I didn't say this was a new problem. Listen, save the lecture from someone else. By renominating the judges W. did in fact set up the fight over judicial nominations as one of his first acts as a 2nd term president. It was obvious that he was renominating the 7 judges to highlight that they hadn't gotten a fair shake, and it was a shrewd move to test those waters before any SCOTUS appointment was directly in the picture. And "the deal" directly followed from that. Don't lecture me, I didn't say anything untrue or anything that even reflects badly on W. himself. Sheesh.
And I am of the mind that judges should uphold the law, not try to subvert the law or legislate from the bench. Right now Roe v. Wade is the law of the land and until it is overturned it deserves the respect of those who vow to uphold the law of the land. I am pointing out that those judges who have a record of openly trying to subvert Roe v. Wade have great respect among those who would see it overturned, but those judges are the very ones that Dems can at least, on its face, say "extraordinary circumstances". If nominations are made of judges who would vote to overturn Roe v. Wade but have shown respect for it as a binding ruling so far, the nominations would be more in line with "the deal" and there would be no leg to stand on in the "extraordinary" circumstances argument.
I agree that right to privacy has been invented and misused by the courts. That's the very reason I used the phrase "constitutionality of present abortion law." I was trying to point out that a judge should be nominated who objects to it on its constitutionality, and not just on a faith-based argument against abortion. Again, this was a strategy to keep in line with "the deal" but still get a pro-lifer on the court. Again, sheesh.
Finally, I proposed generating a grassroots "short list" as a strategy alternative to the one posted by the diarist, one which postulates that the deal will be broken and that Repubs will need to prove what is "extraordinary." The strategy I propose dos not assume this, but rather assumes that there are judges out there who are staunchly pro-life but moderate in other views, and that these judges can be nominated and passed in the Senate. If the Dems use abortion as a litmus test for a filibuster, make it obvious and then there will be no room to argue "extraordinary" circumstances. The way I read the text of the "deal" it seems like this is what the GOP 7 mean by even mentioning the executive branch in the deal itself. I am not saying W. doesn't have the right to nominate whoever he wants, or that the Senate should vote up-or-down on that nomination. Just an alternative strategy. Triple sheesh.
Just an alternative strategy, one that is less confrontational, more proactive and more constructive IMHO.
Well...here's my view of the word, and a couple of nominations which could be considered extraordinary I would think.
Jane Fonda nominated to be Secretary of Defense
Or
Al Sharpton nominated to head the FBI.
The Democrats, in concert with their stooges at the AP, are apparently opting for a "Look at the Wookie" strategy.
In just the last couple of hours, Harry Reid — who as all followers of the mainstream media know, sets the agenda in the Senate — has called for a "Swift Vote" on the Stem Cell bill.
The AP also wants us to know that "Several Senate Democrats said Wednesday the government should crack down on businesses that evade taxes before Congress considers Social Security or tax changes."
This looks like yer basic "Let's change the subject" maneuver, combined with a "Let's flap our arms furiously and act like we're in charge" gambit.
The Stem Cell bill looks like an easy call: pass the thing and let Bush veto it. The voters won't be re-electing him anyway. So he can be the bad guy who cruelly prevents Christopher Reeve's resurrection from the dead.
The 'tax' thing was probably a one-news-cycle flash; we won't hear of it again. But we might get two more tomorrow as part of the arm-flapping.
If the Democrats don't want to talk about judges, there must be a reason. So let's do judges.
(I paraphrase here). I can give you any resource you ask for--except time.
so quickly and transparently setting up this fight so soon in his 2nd term?
GWB had about 18 months in between his reelection and the gearing up for the 2006 elections. Whatever he wants to get done, this 18 months is his best time to do it. His momentum from reelection is at its maximum, and the twisting/distoring effect of the next election is at its minimum. Plus, his agenda is a big one--Social Security reform, tax reform, judicial reform, etc... There's no time to waste.
Frist has to make the Democratic side of the deal show its true colors. We (the conservatives in the blogosphere, commentariat, and the talk redio circuit) need to get our talking points out NOW! We fell behind early in the beginning of the last fight because we didn't get out in front and frame the issue.
People like Progress for America need to get ads together now illustrating how the Democrats ARE breaking the deal, even before they break it. We need to make it clear that the Democratic seven are indeed the pawns of the Schumer, Kennedy, Reid cabal.
This is where John McCain, Lindsey Graham, and Mike DeWine could be formidable allies in this process. Again, during the 2004 campaign, McCain remained silen throughout the whole Kerry running-mate period. Then right after the Democratic Convention, he came out in Oregon and blasted the Democrats and Kerry and placed himself squarely behind Bush for reelection. I also feel that if the Democrats play games again, that John McCain is enough of a party man that he will again screw the Democrats. Once again, the Democrats only claim to legitimacy in this conpromise is John McCain's willingness to deal. If McCain goes to the Senate floor after a hyper use of the filibuster by the Democrats and says he feels hurt or betrayed, he will have done us a far bigger favor than we could ever ask for. When this happens, DeWine and Graham can pull out of the compact, and the Democratic seven would be pinned down. Either they are with John McCain and truly moderate Democrats as they claim, or they are the tools of Chuckie Schumer and Teddy Kennedy. Now all we have to do to get a real conservative on the Supreme Court is send John McCain to the floor to bemoan the prospective filibuster of let's say Judge Luttig to be Chief Justice, then the Democrats will be in a box, and won't be able to block him.
Really the essence of what I'm saying is, we need to rally behind the deal, and then, as the original author points out, define its terms to the public. We don't have much time, but if we take the hand we've been dealt and get Senator McCaian to work with the administration, something that he has done at crunch time in the past, then we'll win the day and have the Conservative majority on the Supreme Court that we want. By emphasizing the positives of the deal to our side, and by proclaiming our fidelity to it, then, and only then can we own the high ground, and then McCain help us screw the Democrats into a hole.
My addition is to coin a few useful phrases.
- "Extraordinary circumstances" occur about once a decade.
- "Extraordinary circumstances" occur about once a generation.
- "Extraordinary circumstances" is the standard for judicial filibusters and impeachment. They should occur about the same amount of times.
- Rogers-Brown, Owen, and Pryor have been determined to be not "extraordinary circumstances"
- "Extraordinary circumstances" does not mention the word extreme for a reason. It has nothing to do with political philosophy.
- "Extraordinary circumstances" would entail a judge who is opposed by the ABA or one who has no law degree. That's an "extraordinary circumstance"
More or less, use the word like one would in normal parlance. And FWIW, I am still happy to be a member of the coalition of the chillin'. And I still think there is very little chance that Dems will be able to filibuster a majority-supported nominee.
Look, I've got my doubts about the deal, too. But to say this means giving up on taking a stand as a conservative is just loopy. Without conservatives taking a stand, NONE of these nominees would have gotten through. So we didn't get all we want in one fell swoop... big deal. We'll dust ourselves off and get ready for the next battle. If you don't do battle, then you will certainly lose every time. As questionable as the deal is, it is far, far, far better than the results we would have gotten if conservatives had not fought so hard, if Frist hadn't drawn a line in the sand.
than if we still had a 51-48 Senate. The +4 pickup is the only reason we had the negotiating power to get this deal. Plus it should make getting good SC judges much easier than it would have been. Each stand and each victory matters.
We need to get the Conservative media, not least of which Rush and Sean Hannity, to understand that we need to play this as the hand we've been given. We also need to immediately state clearly what these circumstances mean. Furthermore, I think DeWine and Graham can make a clear step toward redemption by articulating their understanding on the Senate Floor at some point.
We might lose Saad in all this, but he did send that email, and while I don't think he's extraordinary, I do think that more then a few senators had thier dander ruffled at the idea of a man telling one of them he's going to make them pay, even if everything the man says is the truth.
What I think Saad should do is get over his nomination and run for the Senate against Stabenow and play his experience with the judiciary committee with Michigan's large Arab community. Perhaps he could follow Jeff Sessions, a judicial nominee who follows the Senator who blocked him into the Senate.
You're right on, but I want to tack on this thought: I'm not sure the Supreme Court should be limited to lawyers. District courts, yes. Appellate courts, sure. Not the Supreme Court, though.
I think getting some perspectives untainted by 'legal reasoning' and lengthy study of various binding precdents can be useful there, especially when it comes to understanding plain meaning of the Constitution instead of the meaning of the Constitution as re-written by decades of judicial activism.
The Constitution does not specify any qualifications for appointment to the Supreme Court; although every member has been a lawyer, there is no constitutional bar to membership by a non-lawyer.
to hold the power that it does now. The other branches of government had constitutional requirements placed upon their memberships (age, citizenship, etc). But since "the game" is now being accepted and played under rules outside the realm of constitutionality, why not have a member of the court be a non-lawyer type? Great outside the box thinking on this one!!!!!
On a morning talk show, John McCain was asked whether Saad and Myers would get an up or down vote. He said, and this is not an exact quote, "Some Senators said they would filibuster, some said they would not. If they do it will not be a violation of the deal".
Seems like extraordinary circumstances ARE ordinary. I will try and link a transcript ASAP. We got snookered, and will lose the PR battle because we have disarmed under the pretense of "civility".
would be one who has voted in favor of upholding abortion laws as a either a DCT or CTA judge, but believes that Roe was wrongly decided.
in principle. Non-lawyers should be consider. But that would be extraordinary and there is no reason to provoke unnecessarily in this case. So I'd say now is not the time to try anything unorthodox in that respect. We want an ordinary constructionist, as ordinary as possible.
Specifically gives the gang of 14 members the right to filibuster these 2. We may not like it, but McCain is not stretching its meaning.
I do think the gang of 14 would be better served to let them come to a vote and vote one or both down. That way the filibuster is not employed (point Rs) but the judges aren't comfirmed (point Ds).
I also mentioned over at RedHot that Senator Nelson (D-gang of 14) has said the "extraordinary circumstances" criterion should apply to Kavanaugh, Saad, and Haynes. If I were Nelson, I wouldn't filibuster anyone. And if I were Salazar I would try to keep my promise not to filibuster anyone now that it is possible without upsetting leadership. Pryor, Byrd, Inouye, and Lieberman are harder to predict. But it might not succeed on its own. Add in any pressure from Graham, DeWine, and Warner to call off the deal, and I would bet Kavanaugh and Haynes get votes.
Saad and Myers are less likely, but as I stated above I think an agreement to give them votes and vote them down is more likely.
Actually, a non-lawyer, or at least someone from outside the judiciary and the legal professoriate, might be a good pick. Who do you reckon was the liberals' all-time favorite chief justice? He was the governor of California. ...
Nah, couldn't happen.
Here's Will's take:
Unless it is defined by the Democrats' recent behavior. But can anyone contrive to tickle coherence from that behavior?Democrats have agreed to stop filibustering the confirmation of three judges they have hitherto identified as extraordinarily dangerous to fundamental American liberties. One of the three, Priscilla Owen, is an impeccable representative of mainstream conservative jurisprudence. Have Democrats reserved the right to filibuster similar nominees?
Another of the three, Janice Rogers Brown, is out of that mainstream. That should not be an automatic disqualification, but it is a fact: She has expressed admiration for the Supreme Court's pre-1937 hyper-activism in declaring unconstitutional many laws and regulations of the sort that now define the post-New Deal regulatory state. Conservatives are justified in believing that her libertarianism will usefully leaven the federal judiciary. But have Democrats, by allowing her confirmation, said that a nominee like her does not constitute an "extraordinary circumstance"?
Senate Majority Leader Bill Frist's promise to "closely" monitor Democrats' compliance with the deal concerning judicial confirmations will not require minute measurements with a jurisprudential micrometer. Democrats, that herd of independent minds, will or will not, as a bloc, filibuster a nominee whose only discernible disqualification is his or her deviation from the prevailing consensus in the faculty lounges of the Yale, Harvard, Michigan, Chicago, Stanford and Columbia law schools.
it still all hinges on the definition of extraordinary.
If the Dems get to make the definition first, and with the MSM backing them, it is going to be hard to get anyone in.
So in one area you are absolutely right-this is what the GOP has to work with, so their best plan is to take charge of the definition, and be prepared when the nominees come up to defend them on the basis that they do not meet the extraordinary definition for fillibuster.
. . .would be completely dependent on his clerks for research and general understanding of legal issues, and would either end up being a captive vote for whatever Justice or Justices managed to woo him or her, or a random element that might prove to be a destructive influence. If you thought that "penumbras and emanations" were annoying, wait until some new doctrine created by a group of law clerks and submitted for approval by their captive justice as the central principle of a 5-4 major decision becomes the law of the land. Thanks, but as annoying as lawyers can be, I think we should stick to them when populating the highest court in the land.
Any strategy has to start with making the son pay for the sins of his father. One DeWine in Congress is enough.
His son is not responsible for his father's actions. If the son has endorsed this position or made any indication as to his opinion that would be relevant. But his son is not a political pawn to mess with.
The Constitution prohibits corruption of blood as a penalty for treason: even if we were to view Mr. DeWine's conduct as the political equivalent of treason--a bit of a stretch, IMO--it's not appropriate to consider his son as being tainted by his father's wrongdoing unless he has actively participated in or supported that wrongdoing.
has been leaning hard on donors and activists for junior's Congressional bid. The only way to send a message that the traitors understand is to show them that we mean business, and the only place to do that is at the ballot box.
It's perfectly reasonable not to help the younger DeWine's campaign if the only reason you would have provided such assistance is that the senior DeWine asked for you to do so--the point where it becomes rather distasteful is if you drop DeWine the Younger after having supported him on his own merits because of his father's conduct. Count me as opposed to that sort of thing.
Fox News reported tonight that the reason Dewine and Gramm acted was becuase they did not know how Specter was going to vote!! Specter plus those 5 turncoats would have defeated the nuclear option.
Can you link to something on the web that says this?
Doesn't "the deal" also seem like a reaction to W. so quickly and transparently setting up this fight so soon in his 2nd term?
An alternative battle plan might simply be to convince W. to pick, for a hypothetical SCOTUS appointment, an avowedly pro-choice judge who hasn't bent over backwards to subvert Roe V. Wade or other decisions he/she has disagreed with? Someone without baggage, against whom a filibuster would seem truly extraordinary.
I am not familiar with the ranks of federal jurists, but I assume Redstate itself could even be used to argue, settle on a judge that the right can "live with" in terms of major decisions like the constitutionality of present abortion law, but whose record is not completely tilted far-right. Then the conservative grassroots could push a specific "short list," get the 7 GOP deal-makers to comment on specific names, and get Bush to nominate someone from that list. Then we have everyone working together and any obstruction will be obviously outside the bounds of the deal.