ConfirmThem

Posted at 11:35pm on Aug. 8, 2006 Pucker Up, Mr. President

By AndrewHyman

Associated Press reports:

Critics targeted Lieberman for his ... close ties to President Bush. They played and replayed video of the kiss President Bush planted on Lieberman's cheek after the 2005 State of the Union address.

Here are 25 more people who must be kissed by the President as soon as possible, or sooner.

:-)

These 25 people are the 25 Senators who attempted to filibuster the Alito nomination. If they had had their way, then the Alito nomination would still be pending on the Senate floor, and it would still be pending 15 years from now (as in the case of nominee Terrence W. Boyle). Justice O'Connor would probably have given up waiting for a successor, and would have retired; cobwebs would now be growing all over her seat. I'm tempted to photoshop the President kissing each of these 25 people.

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Posted at 10:46am on May 4, 2006 Cass on the filibuster

By Paul Zummo

Via Real Clear Politics, Ronald Cass has an op-ed on the filibuster debacle currently taking place. It's really too good to selectively quote, so just read the whole thing.

Okay, one liitle blurb:

What is happening now in the Senate, however, treats the entire federal judiciary as if it were composed of ward-level politicians making similarly political decisions. The Democrats' no-vote strategy plays only to the interest groups and not to the broader public - certainly not to the betterment of the courts. Allowing a minority of Senators to derail the confirmation process because they don't like something in a nominee's pedigree - almost always something that offends political, not professional, sensibilities - makes the confirmation process and the federal judiciary itself more political.

Now read it and then go watch the hearings.

Update: Sorry, Andrew already beat me to it. That wily cat. But read it again.

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Posted at 11:40am on Mar. 16, 2006 Novak on filibusters

By Paul Zummo

Robert Novak's column today focuses on the continued filibuster against Bush appointees, particularly 4th Circuit appointee Terrence Boyle. As he concludes:

Continued Democratic reluctance to confirm any conservative judge is expected, but the conservative movement is appalled at the lack of interest by Senate Republicans in confronting this outrage. Pressure is building from members of the Republican base who put a higher priority than their senators do on the future of the federal judiciary.

Faster, please.

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Posted at 2:09pm on Jan. 30, 2006 March on

By Irishlaw

Via a link from Two Cents in the comments to the last post, here's an AP report with some of this morning's quotes, including this one from Sen. Kennedy:

"I think he is the wrong judge at the wrong time in the wrong place," said Sen. Edward Kennedy, D-Mass., a longtime liberal stalwart. "I do not believe he is going to be part of the whole movement of the continued march towards progress in this country."

And here I thought Supreme Court justices were supposed to be faithfully interpreting the Constitution, not leading marches as part of grand movements towards progress. (Where is that again?) Then again, Justice Kennedy also seems to be confused on this point sometimes, too . . .

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Posted at 6:58pm on Jan. 19, 2006 Alito Quotes

By AndrewHyman

The Senate Republican Policy Committee has put together a bunch of particularly significant quotes from Judge Alito's testimony. Meanwhile, the Senators from New Hampshire both say they'll be voting to confirm Alito. There doesn't seem to be much doubt about the ultimate outcome. Even if somehow 41 Senators are willing to attempt a perpetual filibuster, that would very probably be cut short by the nuclear/constitutional/Byrd option.

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Posted at 9:50pm on Jan. 18, 2006 Bluster, Fluster, and Filibuster

By AndrewHyman

Democratic Senators Frank Lautenberg, Mark Pryor, Diane Feinstein, and Ben Nelson predict that there will not be a successful filibuster of the Alito nomination.

UPDATE: Simon Dodd suggests that Pres. Bush postpone the State of the Union Address if the final vote on Judge Alito is postponed.

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Posted at 6:30pm on Nov. 10, 2005 The So-Called Constitutional Option is Still on the Table

By AndrewHyman

Someone emailed us suggesting that we highlight a recent statement by Senator Frist on the constitutional/nuclear option. His full statement is below the fold. Basically, the message is that Judge Alito will be confirmed with 50 votes or more. It's that simple.

Drawing the line in the sand

By Sen. Bill Frist (R-Tenn.), majority leader of the U.S. Senate
Published November 9, 2005

Last week's absurd, unwarranted and disingenuous call for a closed session of the United States Senate sent me a clear message: Many Democrats have decided to mock the Senate's rules in the name of partisan advantage. For more than three years, the Democrats have abused Senate rules to impede the judicial nomination process. To do this, they used a technique called the filibuster--a refusal to end debate and vote.

I am concerned that they may use the filibuster to block President Bush's nomination of Samuel Alito Jr., of the Philadelphia-based 3rd U.S. Court of Appeals, to a seat on the U.S. Supreme Court.

Don't get me wrong: The Senate is not a rubber stamp. All senators should take a careful look at Alito's record, contemplate it, debate it, and finally, use that information and their judgment to vote on his nomination. As a body, the Senate needs to debate and deliberate but, ultimately, it exists to vote. If Alito has enough votes for approval, he should take his place on the bench. If he does not, the president will have to find another nominee. It's that simple. The filibuster has no place in the judicial nominating process.

When considering legislation, it's true that the filibuster has great value in protecting the minority party's rights. Starting during the last Congress, however, Democrats threw 214 years of Senate tradition out the window and used filibusters to stop the Senate from voting on 10 judicial nominees. The minority party subjected five others to filibuster threats and four nominees ultimately withdrew their names from consideration.

Because of the Democrats' interference, the Senate could not do its duty. I'm willing to consider any reasonable proposal on debate: If the Democrats believe that each senator should have a full hour to speak uninterrupted about Alito's nomination, I am open to the idea. But I will not negotiate about the Senate's constitutional duty to vote on the president's judicial nominees.

In the recent past, it has taken 60 votes to shut off debate and end a filibuster. The rules governing filibusters have changed a number of times, and the Constitution gives the Senate a clear right to modify them by simple majority vote. While serving as majority leader in the 1970s and 1980s, my Democratic colleague Sen. Robert Byrd (D-W.Va.) altered Senate precedent with support from a simple majority of senators on four occasions in order to alter Senate procedures and end filibusters. Republicans disliked his use of this "constitutional option," but we know that he stood on firm ground.

If members of the Democratic minority persist in blocking a vote on Alito's nomination, the Senate will have no choice but to do what. Byrd did: exercise its constitutional rights and bring Alito's nomination up for a vote.

I hope that the Senate will conduct Alito's confirmation process with customary courtesy and civility. The process should move toward a January vote in an orderly manner. But if the Democratic minority chooses to obstruct the confirmation process, abuse Senate rules and violate the Constitution, I will not hesitate to put the constitutional option before my colleagues.

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Posted at 6:00pm on Oct. 17, 2005 Oy

By Paul Zummo

That was my response after reading Paul Mirengoff's post on PowerLine this afternoon. He speculates on the potential Democratic reaction to John Fund's column (which has been discussed on this site).

In political terms, Fund's information increases the likelihood of solid Democratic opposition to Miers and maybe a filibuster. I've always thought that, in the end, Democrats might well come down hard against Miers. First, quite apart from any assurances Dobson and others may have received, many liberals distrust nominees with deeply held traditional religious beliefs. Second, Miers was never going to testify in way that would give the Dems (and the influential interest groups that support them) comfort about Roe. Third, Miers is vulnerable in ways that Roberts was not, making it less risky to oppose her. Now, the likelihood of unified, forceful Democratic opposition is somewhat greater.

This may put conservative Republican Senators in a position to sink the nomination should they so chose. Indeed, if the Dems filibuster, conservative Senators could sink Miers without taking a strong anti-Miers position, simply by declining to get behind the nuclear option. But it's not clear yet whether the Dems in the gang of 14, who can effectively prevent a purely Democratic filibuster, would support the filibuster of a nominee who is less demonstrably conservative than the next one President Bush is likely (one hopes) to send up.

The prospect of this nomination triggering a debate on the nuclear option is perhaps the worst possible scenario for the White House. There could have been no other reason to select Harriet Miers other than to guarantee easy passage of a relatively unknown (stealth) candidate, thus avoiding a messy scene in the US Senate. But if a substantial number of Democrats decide, for whatever reason, to oppose this nomination, then not only would the administration have the fight it so desperately tried to avoid, it would have a fight without the support of much of its base.

Which of course poses a dilemma for conservative opponents of Miers. We were all ready to unite in a solid front to debate the constitutional option and urge that all nominees be brought to a floor vote. It is certainly my contention that all judicial nominees deserve an up/down vote. And yet, what do we do if Miers' nomination should be filibustered? I would never support a filibuster, even if I believed it would be the only means by which to keep Miers from the Supreme Court. But I am not sure how energized I would be to wage a war on the filibuster, and I'm sure many of you would have the same reluctance to fight back.

Of course all of this could prove to be a moot point. A filibuster would mean that 40-50 Senators oppose the nomination. Assuming 8 or 9 Republicans publicly (or not so publicly) come out in opposition, then roughly 30-40 Democrats would have to also oppose the nomination. But would the Republicans join in the filibuster? Unlikely, meaning that almost the entire Democratic party would have to oppose the nomination. I can't imagine Democratic opposition being so unified - and if it were, it's equally hard to imagine that there would be just enough votes for a filibuster, but not enough for an outright rejection.

Let me put it this way. Assume all Democratic opponents of Miers seek to filibuster, but no Republican opponent joins in the filibuster. This means that at least 40 Democrats oppose, while no more than 10 Republicans simultaneously oppose Miers. I can't see that many Democrats opposing the nomination, while I also think a greater number of Republicans will decide to vote against her. In other words, it would take a perfect storm of heavy Democratic opposition combined with minor Republican recalcitrance to trigger a filibuster. Miers might not have 60 votes to confirm, but she will not need it assuming her Republican detractors fail to join the very spectacle they derided mere months ago.

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Posted at 9:10am on May 24, 2005 Beldar on the deal

By krempasky

Bill Dyer is far, far smarter than I - and he thinks the Republicans got completely snookered when you get into what the deal actually says. He's probably right as a matter of law - I'm not sure if he's on as solid ground when it comes to the politics. Deals in the Senate are as binding as the signatories want them to be (budget deals/resolutions, anyone?) - so if the moderate Republicans really were looking for a way to avoid a vote, perhaps he's right.

On the other hand, if those who participated (sans McCain, his ego is like Obi-Wan, just try and strike it down) want the opportunity to seem like elder statesmen and then get "forced" by the Democrats into voting later to drop the filibuster, well - that's just as plausible.

One thing's clear: this is a delay, not a final disposition.

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Posted at 9:31pm on May 23, 2005 The Upside of the Deal

By krempasky

Much hand-wringing on all sides, in wake of the McCain for President Announcement compromise on judges. Many on both sides think they've lost.

This is a bad deal, no question. It undermines Senator Bill Frist, Senator McConnell - and frankly, the entire Senate leadership.

On the other hand - Democrats are surely screwed. They get their little scalps - Myers and Saad will not soon see the inside of an appellate court. But the Democrats have simply grabbed enough rope to hang themselves.

Why? Because they've defined extraordinary - if not specifically, by who they've "allowed" on the courts to date - and when Chief Justice William Rehnquist retires on June 27th of this year - all President Bush need to do is select one of the 30-some odd appellate juddges confirmed since he took office and elevate him/her to the Supreme Court. In that case, the Democrats have completely surrendered any opportunity to block such a nominee on any grounds.

Plus, it doesn't hurt that Nan Aron, Ralph Neas, Nadine Strossen, and the New York Times will be nursing some wicked headaches in the morning.

P.S. John McCain is dead to me.

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Posted at 7:58pm on May 23, 2005 It Depends On What The Meaning Of "Extraordinary" Is

By Lorie Byrd

After reading the following portion of the "deal" I have a couple of questions below:

Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.

How on earth do those who define Priscilla Owen and Janice Rogers Brown as "extreme" even begin to define "extraordinary"? And how can those senators engaging in the recent character assassination be said to possess any "discretion" or "judgment" whatsoever?

UPDATE: In the comments section, David points out that since it is up to the individual senators to determine what "extraordinary" is that the deal is not all that bad for Republicans.

That, combined with the fact that the determination of what are “extraordinary circumstances� is left to each individual signatory, opens the opportunity to be excused from voting against future rules changes.

In legalese, not filibustering other than in “extradordinary circumstances� is the “consideration� for the agreement not to vote for future rules changes.

If Democrats filbuster in the future for other than “extraordinary circumstances� as determined by each Senator individually, that Senator is excused from his/her commitment not to vote for rules changes.

All in all, not a bad deal and, in my estimation, a well-lawyered memorandum of agreement.

I am not convinced of that. It will definitely be interesting to see how this plays out .

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Posted at 5:51pm on May 23, 2005 Reid's address this evening

By krempasky

Senate Majority Minority Leader Harry Reid will give the following address this evening, sponsored bought and paid for by the moderately liberal raging leftist Alliance for Justice.

Good evening.

I'm Harry Reid of Nevada, Democratic leader of the Senate, and I love our country very much.

But as I speak to you tonight a crisis is unfolding here in the Capitol that threatens some of our nation's founding principles.

This isn't hype. This is as real as it gets.

Unfortunately, some Senate Republicans are trying to give President Bush power no president has ever had -- the ability to personally hand out lifetime jobs to judges -- including the Supreme Court, without consensus from the other party.

This abuse of power is not what our founders intended. It's wrong for one political party -- be it Republicans today or Democrats tomorrow -- to have total control over who sits on our high courts and rules on our most basic rights.

The fact is Democrats have approved 208 out of President Bush's 218 nominees. That's right -- only 10 were stopped because their views were so outside the mainstream.

I believe that the great moderate majority of Americans don't want judges from either extreme. They want to preserve Constitutional checks and balances and protect the independence of our courts.

I know there are Republican Senators of courage and conviction who share this view. We will continue to reach out to them and pray they will do what's right.

Today, America faces many challenges...we should stand together and meet them - not abandon 200 years of Constitutional principles that have served us so well.

Thank you for listening and May God Bless America.

Yes, Harry - I'm sure you love the country. But that doens't give you a free pass to play games with numbers. Sure, you allowed lots of District Court judges through - but how does the record look for appellate nominees?

Fisk away.

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Posted at 10:55am on May 23, 2005 Is anyone paying attention?

By Paul Zummo

Via the Corner, Kathryn Jean Lopez links to this Christian Science Monitor article that questions whether the public at large is paying attention to the judicial filibuster showdown.

As the Senate heads toward an expected Tuesday vote on barring judicial filibusters, and the fight over judicial nominees grows nastier, the answer to which party is winning the battle for public opinion may be "neither."

Americans think "there's no direct relationship to their lives, and they have other things to be concerned about," says Larry Sabato, director of the center for politics at the University of Virginia in Charlottesville. "They see it as typical politicians fighting in the sandbox while Rome is burning."

The article continues, observing that though public opinion polls show a slight majority seeming to back the Democratic position, in the long-run the public could punish the Democrats for their obstructionism.

"You get close enough to Washington and you can smell the stink," says Nick Zeger, a young pharmacy technician who voted for Bush, outside a Nashville grocery store. "I'm disgusted with the Republicans in the fact that it's come to this, but I'm more disgusted with the Democrats for refusing to work with them.'' And if he had to blame anyone for the impasse? "It would be the American people - because we're the voters and we chose these clown acts to go to Washington."

Frankly I am not surprised to hear that the public is not overly concerned with this issue. To the average person, this seems like more of a procedural fight that unduly (in their eyes) takes attention away from more pressing matters. And to the degree that the public doesn't really care, I think that it should assuage the fears of those who think that Republicans will face a backlash should they go through with the nuclear/constitutional/Byrd/poppycock option. I have argued before that the Republicans didn't even experience a backlash for more public controversies, such as the 1995 government shutdown and the impeachment. If the mass public didn't repudiate the GOP over those matters, what makes people believe that the voters are going to do so now when the issue is one that they are less concerned about?

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Posted at 4:53pm on May 20, 2005 A piece of history

By krempasky

At 2:19pm today, Senator John Cornyn (R-TX) filed this cloture petition with the words, “Without objection, on behalf of the Majority Leader, I send a cloture motion to the desk.�

Expect the final vote late Monday or early Tuesday, and thanks to Barbara Ledeen at the Republican Conference for the document.

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Posted at 12:18pm on May 20, 2005 More on Graham

By krempasky

I mentioned a little while ago that it appears as if Lindsay Graham is becoming a problem for Senator Frist. Now I'm hearing that as word filters through the movement of folks working to get judges confirmed, no less than Focus on the Family (or one of it's affiliated groups) is pulling the trigger on a pretty massive phone banking effort to Graham's office. Those poor staff assistants - if you know anyone in his office that you'd like to talk to, I suggest ringing them now. Calls could come as early as today.

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Posted at 9:49am on May 20, 2005 Aborting the filibuster

By krempasky

Scrappleface has the goods. It's all about trimesters.

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Posted at 9:35am on May 20, 2005 Filibuster Showdown: Day Three Open Thread

By krempasky

Majority Leader Frist is scheduled to introduce a petition to invoke cloture on the nomination of Priscilla Owen this morning, which by rules will have to "ripen" for two days (consider the final vote Monday or Tuesday). Catch the action on C-Span and consider this an open thread.

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Posted at 9:00am on May 20, 2005 Behind the scenes

By krempasky

The NY Times runs a profile this morning about some of the less-visible players in the filibuster fight. For me, I think I'd prefer an expose on the tens of millions of dollars funding far-left interest groups working to legislate through the courts with Democratic Senators in their pockets.

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Posted at 1:38am on May 20, 2005 Looks like Tuesday's the day

By krempasky

And McCain's causing trouble, according to the Houston Chronicle.

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Posted at 11:53am on May 19, 2005 Filibuster Debate: Day Two Open Thread

By krempasky

Have at it. Trent Lott on the floor now. Don't forget to tune into C-Span.

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Posted at 11:22am on May 19, 2005 Charles Fried on the constitutional issues

By Paul Zummo

Via Real Clear Politics I caught this Charles Fried column in the Boston Gobe. To be honest, I must confess to some confusion over the conclusion Fried is trying to draw with the article. He seems to essentially support the Republican position, but he also attempts to hug the middle.Fried's thesis comes in the opening paragraph.

This is really a political, not a constitutional fight, and in figuring which side to support, the public should at least not be confused by bogus claims of constitutional principle.

Well that depends who you are talking to. I can't claim to speak on behalf everyone on this site or for the majority of conservatives for that matter, but I believe that dogfight is ultimately both political and constitutional. First of all, I hold a semi-Aristotilian view that everything is, ultimately, political. We're all political animals, and as such everything we do holds some sort of "political" meaning. But let's aside the theoretical issues here. My concern - and here I think I can speak for most conservatives - is that the current judiciary holds no deep respect for our Constitution. They have subverted the plain meaning of the Constitution through activist interpretations designed to achieve a preferred policy aim. As Andrew has stated, we disdain all acts of judicial activism that seek a policy rather than constitutional end - be it a conservative or left-wing decision. Our goal is to confirm judges who will in fact interpret the Constitution according to its framers' original meaning, and who will not invent non-sensical theories such as substantive due process, and who do not find invisible "penumbras" that they concoct in order to justify their activist decisions. We believe we need judges like this because a constitutional republic cannot long stand if its central legal document can so flippantly be altered by unaccountable justices. Once the Constitution becomes a dead letter, then we lose our basic security against government intrusion. Thus, for most of us, this is very much a constitutional as well as political fight.

Yes, this fight has been politicized by special interest groups, but those very same groups that we decry are a natural outflow of the Constitution we're fighting to protect. What must be understood is that the constitution is itself a political document. It does not necessarily assume specific policy ends, but it establishes the basic ground rules in which politics flourish. And let's not forget the very political compromises that were forged at the time of its framing. The 3/5 rule, the electoral college, a bicameral legislature with only one House based on proportional representation: these are all the result of compromises worked out because certain groups most definitely had political ends. Small states did not want the larger ones to dominate them, so they insisted on a branch of Congress wherein each state would be represented equally. I think Charles Beard's thesis in An Economoic Interpretation of the Constitution of the United States is overblown, but few would deny at least a certain inclination on the part of the Framers to protect property rights.

Perhaps I am going too far afield of Fries' basic argument. But even here he seems inconsistent. Consider this paragraph:

The Constitution does not say one word about filibusters, but it does state that ''each house may determine the rules of its proceedings." Does it speak by implication? In the case of impeachments ''no person shall be convicted without the concurrence of two-thirds of the members" of the Senate. Either house may expel a member for disorderly behavior but only with the concurrence of two-thirds of the members of that house. Treaties must be ratified by two-thirds of the senators present. The president's veto may be overridden by two-thirds of each house. And to propose amendments to the Constitution, two thirds of both houses are necessary. It is therefore a fair inference that, unless another voting rule is prescribed, in all other cases only a simple majority is required. And no other rule is prescribed for the voting on each house's rules. To say that in a democracy majority rule is at least the default rule is hardly wild speculation.

[Emphasis mine]. Thus Fried acknowledges the inference that while the judicial filibuster is not strictly violative of the strict meaning of the Constitution, it certainly runs afoul of its spirit. So doesn't this make the issue at least partly a constitutional one?

But in the end, Fried won't let go of his central thesis.

So in the end it comes down to politics. Absent some specific prohibition, majorities have the power to vote legislation and change rules - that's called democracy. But in a democracy, power cannot be, or cannot long be, exercised without public support. And in choosing which side to support, the public should know what is really at issue - a question of politics.

This is very odd. He offers up a theoretical argument - that in a democracy majortities have the power to vote legislation and change rules - but then claims that this is a political issue. Well, I suppose everything is a political issue when we're talking about political theory. But it is also a constitutional issue. Can a determined minority of the Senate, based on the language of the Constitutional, prevent a determined majority form conferring its consent upon a President's judicial nominee. We may not all come up with the same answer, but that makes it no less of a constitutional issue.

Perhaps we should take small comfort in the fact that Fried basically supports the Republican position, even if he seems strained in doing so.

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Posted at 10:47am on May 19, 2005 Deal, just for argument's sake

By Quin

This is cross-posted at C-Log, the Heritage/Townhall site:
Before I begin, please note that I write this from the standpoint solely of political analysis. On principle, the constitutional option should be invoked, and all PERMANENT filibusters against judicial nominations outlawed. The reasoning should be familiar to most readers, so I won't belabor it here. For that matter, I'm anti-filibuster in general, even on legislation. I support the Lieberman 1995 proposal for a step-ladder cloture rule, starting with 60, then 57, then 54, then 51 (NOT including the V-P). ALL THAT SAID, HOWEVER, I think from a political standpoint the Dems are getting close to offering a deal that the GOP would be politically advised to accept. IF the Dems COMBINE the Salazar proposal with the Nelson proposal, as described below, the GOP will have enough of a deal to declare victory. The Salazar proposal guarantees up or down votes (no filibusters) on all judges pending before the full Senate. What I'm calling the "Nelson" proposal says votes on all but two judges, except in "extraordinary" circumstances. As Byron York at NRO explains, "extraordinary" circumstances is indeed a significant step up from merely what the Dems call "extreme" nominees. Okay, here's how to merge the two: Take the Salazar (nofilibusters on eight pending nominees); add Boyle and Kavanaugh to the no filibuster rule (since they are ready for final committee approval); then, for all future judicial nominations during this Congress, accept the Dems promise not to filibuster except in "extraordinary" circumstances. Why? Because if the GOP accepts a deal, it looks good to the American people; it belies its reputation for not being willing to compromise. And this deal guarantees fair votes for all pending nominees. It also puts real pressure on the moderate Dems not to filibuster in the future: WHICHEVER side reopens this can of worms -- ESPECIALLY on a Supreme Court nomination -- will get obliterated in public opinion. Besides, for the high court, our bench is very, very deep. Here's how I see it playing out: All pending nominees, including Pryor and Owen, get confirmed -- although Brown, Boyle, and especially Saad might be real close votes. (Pryor, freed from the filibuster fight, might actually get 60 votes for confirmation.) In July, Rehnquist and O'Connor retire. Bush nomination Judges Garza and Alito (Garza for CJ). Let the Dems even THINK about filibustering those two! No way they filibuster. In 2006, Scalia retires because he's miffed he didn't get promoted to Chief. Bush nominates Edith Jones.Dems sputter an awful lot, but how can they really complain about replacing a pro-life man with an apparently pro-life woman? It doesn't upset the balance of the court. Anyway, after that, GOP picks up a net of one Senate seat in the 2006 elections. In 2007, wanting to head off another nuclear option fight, both sides agree to something close to the Lieberman step-ladder rule FOR JUDGES ONLY. Later that year, either Stevens or Ginsburg retires. Bush nominates Edith Rutledge Clement of New Orleans. She's a good nuts-and-bolts judge, very careful. Conservative, but non-threatening (not prone to controversial statements). She gets confirmed. THe court line-up by 2008 thus becomes Kennedy, SOuter, Thomas, Breyer, Ginsburg (or Stevens), Garza, Alito, Jones and Clement. Not bad at all. -- Quin Hillyer

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Posted at 5:04pm on May 18, 2005 News Flash from the Texas Legislature: Owen Not Guilty of Activism (but Gonzales May Be)

By DanCT

Remember then-Justice Alberto Gonzales's "unconscionable" comment about judicial activism in the Texas parental consent case? It looks like he and a majority of the Texas Supreme Court may have been the real judicial activists. After being accused of judicial activism, the majority issued a challenge to the legislature:

If the Legislature, as a body, agrees with amici that we misunderstood their intent, it is the Legislature’s prerogative to amend the statute to give us different guidance.

Well....The Texas legislature has now taken up the challenge. According to Texas Alliance for Life director Joe Pojman, the State House has passed a new bill "to help ensure parents have a greater role." He says the judicial bypass process has become a judicial rubberstamp for bypassing parental notification. That rubberstamping is precisely what the dissenters in the "unconscionable" decision were so upset about because, unlike Gonzales and the court's majority, they understood that the elected branches intended for their law to have a greater effect.

UPDATE: Power Line revisits the "unconscionable" issue here.

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Posted at 9:37am on May 18, 2005 It's showtime

By krempasky

Right now on the Senate floor, debate has begun on ending the filibuster for judicial nominations. Tune into C-Span 2 and consider this an open thread.

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Posted at 6:46am on May 18, 2005 Don't Look For Balance On GMA

By Lorie Byrd

I didn't think I could be surprised by MSM bias on any issue, especially on judicial filibusters, but George Stephanopoulos' comments on Good Morning America a few minutes ago made my jaw drop.

I do not yet have a link to the transcript or video, but the appearance was a triumph of misinformation. He used the Democrats' favorite label of "controversial" to describe Priscilla Owen and Janice Rogers Brown, saying among other things, that Priscilla Owen had denied a young woman an abortion because she did not see her parents. He pulled out the quote from Brown about the New Deal being this country's socialist revolution.

To top off the segment (or should I say, the reading of the Democrat talking points) he declared that what the Republicans are trying to do is to change the way the Senate has operated during its history and to create a huge shift in power. Diane Sawyer repeated his final statement about the shift in power.

(This also posted at Polipundit.)

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Posted at 9:27am on May 17, 2005 Washington Times filibuster items

By Paul Zummo

There are a couple of items of note in the Washington Times today releated to the filibuster. The first is an editorial that uses Senator Byrd's own words and actions against him. Particularly interesting were Byrd's quotes during a 1979 showdown where Byrd threatened a rules change in order to end a legislative filibuster. During the course of debates Byrd summoned the spirit of Thomas Jefferson* in asserting, "This Congress is not obliged to be bound by the dead hand of the past."

Meanwhile, Tod Lindberg pens an op-ed on this proposed compromise: "1) The filibuster rule will not change; and 2) the filibuster will not be used to prevent a floor vote in which there is a Senate majority in favor of the nominee except in the most extraordinary circumstances. " Lindberg does not foresee an end to the increased partisan rancor, reasoning that the activist wing of both parties, but particularly the Democrats, will not allow such a compromise.

What I don't see is how any accommodation by the Democratic leadership is possible at this point. The activist wing of the party has talked itself into the proposition that the currently blocked nominees are blocked because they are simply unacceptable - unfit for the bench, regardless of how qualified the ABA says they are, each and every last one of them. When Senate Minority Leader Harry Reid floated a compromise two weeks ago that would let some through, some people on his ne plus ultra wing didn't get the memo that it was just a tactical ploy. They were horrified at the thought that any of los filibusterados would make it to the bench.
Can six independent-minded Democrats and six independent-minded Republicans make a deal? Against the wishes of their leadership and their party's base? Republicans would find such a deal easier to make than Democrats. It gets their judges confirmed and reserves the question of what "extraordinary circumstances" are and the threat of the ultimate sanction, ending the filibuster, in case of abuse. Democrats, on the other hand, have to accept that a group of judges who have become the objects of fear and loathing to those in their party most actively interested in the judiciary will indeed take seats on the appellate bench, where they will be poised for elevation to the Supreme Court.

I'm not sure I fully agree. I do not think there should be any compromise, nor does it seem that many conservatives seek a compromise resolution. In that case, it seems the base of the Republican party would be more outraged by any dealing. In point of fact it would be the Democrats who stand to gain from any sort of negotiated ploy as described above. The Republicans hold all the cards, and allowing this vague deal to go through would do little in the way of getting all of the justices who currently seem to have majority support confirmed, but it would allow the minority to hold far more sway than it justly should.

On the other hand, Lindberg does have a point. Any concession by the Democrats will anger a large segment of their own base. They will not see it as a victory.

But what will they do? Unlike the GOP, I do not see Democratic base voters turning their backs on their Party because of a perceived sellout on justices. Conservatives have been uneasy with the current administration and Congress, believing that the Party in Washington has compromised core conservative principles. Many on the right see this as an issue where the Republican Party can redeem itself for past transgressions. As such, any sort of deal will only further anger those already concerned with the GOP, and they could potentially stay at home in future elections. I doubt that left-wing activists will be quite as upset should a compromise be worked out in the Senate.

* Thomas Jefferson, at least in my view, was less concerned than other Framers in adhering to tradition. One of his most noteable quotes was that "the earth belongs in usufruct to the living," and that the dead have no rights.

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Posted at 8:25am on May 17, 2005 Filibuster vote imminent

By krempasky

Or so says CBS News. What's not clear is whether or not a Bolton vote will be rushed through the Senate before hand.

And John McCain? Still a squish.

Finally, here's an MSNBC profile of Judges Owen and Brown. Extra points to commenters who identify specific hit phrases in the piece.

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Posted at 3:25pm on May 14, 2005 "It Is About Religious Belief"

By Feddie

Tony Perkins of the Family Research Council has an excellent piece in the Washington Post today. Here's a taste:

Well, I agree with the president that some Democratic senators have targeted the judicial philosophy of the nominees. But that judicial philosophy has been scrutinized and scorned in several cases precisely because of the nominee's belief system or faith -- not because of his or her record. After all, it was Sen. Charles Schumer (D-N.Y.) -- not the Family Research Council -- who launched an inquiry into one key nominee's "deeply held personal beliefs." Schumer didn't challenge the nominee's "deeply held judicial philosophy," but rather his beliefs.

And what were those personal beliefs? In the case of former Alabama attorney general William Pryor, as with other filibustered nominees, it appears that it was the nominee's personal views on abortion, homosexuality and other matters on which Catholic and evangelical churches have clear positions that are contrary to those of liberal Democrats and their allies. Pryor failed the Democrats' test because he had spoken out, as a Catholic, saying that abortion is an abomination. He was also questioned about postponing a family vacation with his young children to Disney World because he found out it coincided with "Gay Days" at the park.

. . . .

Having "deeply held personal beliefs" such as these was enough to set the liberal pressure groups on edge and trigger filibusters. The pattern that has emerged is that any nominees who hold to the traditional tenets of their faith as a guide for life, whether they be Catholic, Protestant or Jewish, fail the litmus test, the liberal loyalty oath, that is being employed by some Senate Democrats. Faith is acceptable as long as it remains unknown, or is applied only to personal beliefs about such matters as poverty and capital punishment. Call this standard a litmus test on abortion, a de facto screening for religious conviction, or a demand for fealty to the Democratic Party platform -- whatever it's called, the results are the same.

The sometimes subtle, too often open, campaign against orthodox religious views is too important an issue for us to simply turn our heads and ignore the truth. Left unchecked, the climate of intimidation against religious voices will empty the public square of many of its most-needed voices. Our children, and our children's children, must never be asked to choose between publicly acknowledging their faith by teaching a Sunday school or catechism class and serving in high public office. We must never reward those whose methods of inquiry involve carrying tape recorders into private meetings, Bible study, church services and the chambers of conscience.

In their zeal to preserve an imperial judiciary, liberals have taken abuse of the confirmation process to a new low. The way out is to vote on each nominee on his or her merits.

Exactly.

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Posted at 10:32am on May 12, 2005 Funny Cartoon From Cagle

By AndrewHyman

Hat tip to Mike. More cartoons on this subject here and here.

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Posted at 10:38pm on May 11, 2005 The Problem With The Polls

By Lorie Byrd

Betsy Newmark links to and comments on an article in The Hill by Republican pollster, David Hill, about the problems with the polls that have been done on the subject of the judicial filibuster. One of the biggest problems is that most don't understand the filibuster issue, so it first has to be explained to those being polled.

Ask any political-science professor if he’s ever been able satisfactorily to explain the filibuster to a class of daydreaming college freshmen in 50 words or fewer. Even with the specter of a grade hanging over their heads, most students won’t get it the first time. Imagine how attentive a Gallup Poll respondent must be if he’s a 30-something guy watching ESPN while taking the poll, or a mother cooking dinner with a kid on her hip, or a senior citizen straining even to hear the description.

These policy polls all face the same problem. Only a handful of Americans are truly interested in issues. Public polls are fine for election trial heats such as Bush versus Kerry. Voters get that. But policy polls reveal empty heads.

After quoting an excerpt from Hill's piece about how confusing and inadequately some poll questions have been framed, Betsy Newmark makes an excellent point.

You could just as easily frame a question by saying, "As you may know, the filibuster has been used historically to block civil rights legislation. Today the Democrats are using the filibuster to block Bush's judicial nominees. Do you support or oppose the use of the filibuster?" That wouldn't be a fair framing of the question either, but it would have as much historical validity as the question Gallup did choose. Gee, who is against blocking controversial legislation? Of course, they didn't mention that much of that "controversial legislation" involved banning discrimination against blacks. Puts a whole different spin on this sacred right that the Senators all love so much when they're in the minority, doesn't it?

Wow, Betsy hit on a couple of my biggest pet peeves in one post: bogus polls, and the use of the word "controversial" when describing any judicial nominee that Democrats don't like.

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