April 27, 2005

Re: "Nuclear Fission"

A friend of mine who's at Princeton posts the following comment re: "Nuclear Fission":

...I have a particular interest in judicial nominations and the filibuster thereof. I actually worked on the issue during the summer of 2003 in the Majority Leader's Office. I would like to make a few predictions. 1) Various interest groups will start a large scale campaign of advertisements in order to move public opinion in a direction favorable to the nuclear/constitutional option. This will begin quite soon. 2) Republicans will successfully exercise the nuclear/constitutional option with 51-52 Senators voting for it. 2) They will do so relatively soon, likely by the end of May. 3) Democratic retaliation will be loud but ultimately irrelevant. If they attempt a total shutdown, they will end up looking like Newt redux. If they attempt a partial shutdown, they will look petulant. The reporting of Michael Crowley in The New Republic ("The Day After," 4/18/05) is particularly interesting on this count. 4) Rehnquist will retire this summer and Bush will appoint a judge who Ted Kennedy and Chuck Schumer consider "outside the mainstream." He/she will eventually be approved with less than 60 votes.
I would love to see any comments you have.

I've been following the developments on Liberal Oasis and other web sites, and the plot is definitely thickening. Senate Minority Leader Harry Reid offered a compromise to Majority Leader Bill Frist that would have allowed two of the less extreme of Bush's nominees through in exchange for dropping the Nuclear Option. Frist rejected it. Liberal Oasis speculates Reid might have been "going through the motions" of a compromise so Democrats would be able to say they tried to compromise when shit goes down.

Polling by and large shows the American public to be against the Nuclear Option, and even to side with Democrats on taking a stand against the nominees, though one cleverly worded GOP poll produced different results. Such is the flexible nature of polling, but I think the evidence shows Americans are against the Republicans here.

So to respond to your comments, Stephen, I believe though you might be right on predictions (1), (2), and (4), you're off on (3), which is the one that'll have big ramifications for midterm elections. This situation is clearly not analagous to the government shutdown over the budget in '95. Republicans are trying to pull a completely unprecedented, absolute takeover of power here, and it's not going to sit well with people. The noise Democrats make will indeed be relevant, because Republicans will lose (even more) seats in 2006. Perhaps you Republicans have concluded the risks/costs in the legislature are worth the benefits of the power gained in the judiciary. I think that's a reasonable analysis, but I'm betting it's ultimately wrong. I'll take a Democratic House and the initiative of agenda that comes with it -- in fact, I think that might be Democrats' best bet.


  1. Anonymous2:28 PM

    How is this an "absolute takeover of power"? I know - they're trying to remove the filibuster on judicial nominations, removing a check used by the minority party to check the majority. But the GOP is a majority for a reason - the voters of this country put them in power in the elective branches. Maybe the Democrats are trying to hold on to their only remnant of power in the face of a strong majority against them. But that's semantics.

    I think this wouldn't be such an issue if the Democrats hadn't been such brutal obstructionists. I'm sure you've seen the chart from the Economist that pretty clearly shows this. The percentage of circuit court nominations approved has basically been steadily declining since Carter, but has taken a dramatic downturn for Bush. Clinton's was a little over 70; Bush's is just over 50. Think about that. Also look at the fact that Clinton was going up against a hostile Senate, and he still had a 20 point edge over Bush. That's ridiculous.

    But I think the best thing is how the Democrats have embraced the filibuster - there's nothing like Pelosi linking Byrd (the KKK member) to the filibuster - which he used successfully to stop the Civil Rights Act of 1964. Nice. And I think that leads to the polls - do people actually understand the filibuster? Its origins? Its function? And, perhaps more important, its history is stopping vital and important progress that the majority of the country wanted but was powerless to enact because of a few bigoted senators (from both parties)?

    The filibuster is important, but enough is enough. If Democrats will not allow the senate to fulfill its Constitutional duty by not even allowing the Senate to vote on a candidate, then they should be prepared for the consequences. It's just up to the GOP to properly educate the public and frame the debate - something that they haven't been good at recently (social security, filibusters).

  2. "I'm sure you've seen the chart from the Economist that pretty clearly shows this."

    I could barely read past this flippant little remark. I do not read the Economist. Not everyone does. Do you read the New Republic? What about the Nation?

    Fortunately I did read further and I came across some choice nuggets of hypocrisy:

    "...the filibuster - which he used successfully to stop the Civil Rights Act of 1964. Nice."

    "...its history is stopping vital and important progress that the majority of the country wanted but was powerless to enact because of a few bigoted senators (from both parties)? "

    First of all, the GOPers that be aren't proposing to end the filibuster of legislation, only judicial confirmations. This renders almost all of your comment a non-sequitur to the issue at hand.

    Still, I'll go on. It would be quite a noble cause if the Republicans were seeking to end this current filibuster in pursuit of a civil rights agenda. Unfortunately, the opposite is true. The following justices all have abysmal records on this issue:

    Charles Pickering who "co-sponsored a Mississippi Senate resolution calling on Congress to repeal Section 5 of the Voting Rights Act (providing federal oversight over jurisdictions with a history of discrimination in voting) or to apply it to all states regardless of their discrimination history, widely seen as an effort to gut the Act." This is a particularly specific and egregious example taken from a long career of opposition to civil rights.

    Pickering is the worst of the bunch, but it's a pretty fucking rotten bunch:

    Jeffrey Sutton has "argued to the Supreme Court in Alexander v. Sandoval that Congress could not constitutionally authorize individuals to sue states to enforce their rights under Title VI, which protects persons from discrimination based on their race, color or national origin in programs and activities that receive federal financial assistance."

    Carolyn Kuhl "..persuaded the Attorney General to reverse an 11-year Internal Revenue Service policy and reinstate the tax-exempt status of Bob Jones University and other racially discriminatory schools. More than two hundred lawyers in the Justice Department's civil rights division signed a letter at the time expressing their concerns about the decision. Indeed, current Solicitor General Ted Olson, who was then head of the Office of Legal Counsel at the Justice Department, was among those who opposed Kuhl's position. The Supreme Court disagreed with the position advocated by Kuhl and, by an 8-1 vote, denied Bob Jones and other racially segregated schools tax-exempt status."

    I really just hate it when Republicans try to win on the civil rights issue because they are wrong on the facts. It's really just flagrant and offensive for you to talk about civil rights as you defend the confirmation to the federal judiciary of several individuals who have made a career of standing in the way of progress in this area.

  3. Anonymous5:34 PM

    I wasn't commenting on the civil rights movement, or trying to claim it, as some conservatives have tried to do; I was meerly trying to illustrate that the history of the filibuster, for whatever purposes, is far from noble; and that it is rather ridiculous for Democrats to wrap themselves in it as an essential and wholly democratic protection and check on the Senate. It's not that, and the history of the filibuster shows that. For better or for worse, the filibuster is used by a minority party to resist legislation that would be enacted by the elected majority. And in the past, that has led to bad consequences.

    As for the Economist comment, I don't read it either. But the chart and it's discussion have been around quite a bit on the blogosphere, so I thought you might had seen it, especially as it pertains directly to the discussion of judicial filibusters. And comparing the Economist to the New Republic or Nation is not really proper, as I wouldn't call a magazine that was against the war and supported Kerry a bastion of conservatism, as the two your mentioned are (at least now) for liberalism.

  4. Anonymous, I will remind you that the current Senate's 55 Republicans represent 131 million people, while its 44 Democrats represent 161 million. (See this post for details.) While the popular majority does not matter for the Senate's procedures, it's a fact worth keeping in mind when you defend such a radical, hostile move on the grounds of majority rule.

  5. Rather, see this post for that info.

  6. Stephen Smith8:00 PM

    Thanks for replying, Chris.
    First, I would like to say a word about possible compromise. As you reported, Sen. Reid is willing to end the filibuster on two of Bush's nominees in exchange for a promise not to change the rules governing filibusters of judicial nominations. As you recognize, this is merely "going through the motions." Reid is attempting to look reasonable, but his compromise is absurd given the fact that it leaves their strategy intact and would have no effect on the coming nominations of Supreme Court Justices. On the other hand, Sen. Frist gave a floor speech today in which a real compromise was put forth. It would end the filibuster on all judicial nominations, but would guarantee 100 hours of floor debate on each nominee (a ridiculous amount of time) and ensure that no nominee is prevented from receiving a vote because they are bottled up in committee (a major complaint against Senate Republicans in the Clinton years). If the issue is really about the importance of extended debate, then this compromise should be acceptable. If the Democrat talking point about the hypocrisy of Republicans given the blocking of Clinton nominations was sincere, then it would likewise be acceptable. However, I have the feeling that the Democrats will reject it out of hand.

    Second, I would like to respond to your rhetoric about the proposed nuclear/constitutional option. In your post, you call it "a completely unprecedented, absolute takeover of power here." In another comment, you call it a "radical, hostile move." I think such charges are hyperbolic and historically ungrounded. It must be remembered that no filibuster of judicial nominations ever occurred in the first 200+ years of Senate history. Yes, the Senate's majority party has blocked presidential nominations without a floor vote. Yes, Abe Fortas' 1968 nomination to the position of Chief Justice might well have been filibustered if he had not withdrawn his nomination after 4 days of floor debate given the increasingly obvious fact that he did not have a majority of the Senate's support. But never has a minority of the Senate used the filibuster as a strategy to derail judicial nominations supported by a majority of the Senate. In my mind, the very strategy of filibustering judicial nominations is "completely unprecedented" and "radical."

    As to your claim that a rule change passed by a simple majority would be unprecedented, I would refer you to an article from the January 2005 edition of the Harvard Law and Public Policy Journal, by Martin Gold and Dimple Gupta (I can provide a PDF copy if you would like one). In this article, the authors make clear that a simple majority has indeed changed Senate rules in the middle of a Senate session. In fact, the central figure behind such rule changes is then-Majority Leader Robert Byrd. Now of course he is a principled filibuster proponent, which is to say an outrageous hypocrite in addition to his well earned credentials as virulent racist.

    Finally, as to your claim that such a rule change would amount to an "absolute takeover of power," I would reply that Republicans have won the presidency, a majority of the Senate and a majority of the House. Such an electoral trifecta does entail great political power but it is ridiculous to call this an "absolute takeover." First, "takeover" implies that their power was gained illegitimately. Surely you aren't supposing that the elections were rigged? Second, there is nothing absolute about Republican power on the federal level, considering the continued presence of the legislative filibuster as well as the control of the Supreme Court by non-originalist judges whose philosophy of law is antithetical to the principles of the Republican party and of conservatism in general.

    Sorry about the length of this reply, but I think that you deserve my best arguments. I look forward to any further comments/criticisms that you might have.

  7. Anonymous8:20 PM

    Hey Stephen Smith, none of what you have said changes the fact that these judges that Bush is tying to comfirm are despicable human beings. They will fuck up this nation. It will be fucked up. It's on your conscience asshole. And this is not a non-responsive post. You've made it quite clear through your beliefs that you are indeed an asshole.

  8. Stephen Smith9:05 PM

    To call me names while remaining anonymous is cowardice, pure and simple. Also, before posting any more slanderous comments, check your spelling. Misspelling a word like "confirm" leads one to discount the substance of your argument.

    I have not defended the character or record of any particular judicial nominee. However, I think that a majority of the United States Senate is perfectly competent to review such qualifications. I would, however, like to hear your reasons for calling Miguel Estrada (the first Circuit Court nominee to be filibustered in the history of the Senate) a "despicable human being." Estrada's story is truly inspirational and I have heard no claims that would merit your slander.

  9. Anonymous12:48 AM

    STFU, asshole.

  10. Anonymous1:47 AM

    I would like to briefly address the point Chris made about the fact that Democratic senators represent more people than GOP ones do: First, a quick question - does that statistic reflect total population or the number of people who voted for the winning senator? Just curious. But two quick points:

    One - that is the most worthless stat ever. There's a reason why we have two branches of Congress - one is representative, one is not. The House is represenative, and there the GOP has a majority too. Stop trying to make the senate into a represenative body. The reasoning behind it and in front of it mean nothing. The argument really comes from no where and it ultimately leads to no worthwhile conclusions.

    Two - The fact that you throw that statistic out there shows to me the dominance with which the GOP currently has across the board. In order to find a Democratic majority on the national level, you had to resort to a statistic that means nothing and contributes nothing. In every meaningful majority, the GOP is in control. Just thought that that was interesting.

    I think Frist's compromise was a good one, and is one that will make it hard for Democrats when they have to explain just why they turned it down.

  11. "Two - The fact that you throw that statistic out there shows to me the dominance with which the GOP currently has across the board."

    I'm not sure how one can "have with the dominance," but just take a step back and look at how power-hungry (you) Republicans are right now. This is out of control. You're pissing all over the Consitution with your Terri Schiavo and you're shitting on Senate precedence and procedure with your nucular options and you tar and feather every dissenter for being unpatriotic. When did Democrats ever get this out of line during their like 400-year presiding over the Golden Age of our Nation? Never. What is your deal? WHY?

    If power corrupts and absolute power corrupts absolutely, well there needs to be a third and even worse phrase for what's happening to Republicans right now.

  12. Stephen Smith3:01 AM

    I just want to make one point about the fact that "the current Senate's 55 Republicans represent 131 million people, while its 44 Democrats represent 161 million."
    I think we should keep in mind that the wholly new practice of filibustering controversial judicial nominees will have set a precedent if not soon overturned. Even though the judicial filibuster might not be terribly anti-majoritarian at this moment (in the sense that the 55 Senate Republican's do not represent a majority of the population), it is likely to be so in the future. If Democrats regain the Senate, then they might well represent 200 million Americans, yet Republican Senators, who represent 100 million or less, could effectively frustrate the majority's judicial preferences by employing the filibuster of judicial nominations.
    The point is that over the long term the filibuster (either legislative or judicial) is counter-majoritarian no matter how you slice it.